Health Sciences Association of Alberta v Siksika Health Services

IN THE MATTER OF A FIRST COLLECTIVE AGREEMENT ARBITRATION

PURSUANT TO SECTION 92.4 OF THE LABOUR RELATIONS CODE,

R.S.A. 2000, c. L-1, as amended

BETWEEN:

HEALTH SCIENCES ASSOCIATION OF ALBERTA

The “Union” or “HSAA”

AND

SIKSIKA HEALTH SERVICES

The “Employer” or “SHS”

INTEREST ARBITRATION AWARD

Panel:

Mark L. Asbell, Q.C., Trina Avey (Nominee

for the Union), Deb Milimaka Miles

(Nominee for the Employer)

Appearing for the Union:

Appearing for the Employer:

Trisha Thibodeau (Counsel), Gail Olstad,

(Labour Relations Officer), John Nystrom,

Cam Doore, Mozac Samson

John Batzel (Counsel), Vicki Yellow Old

Woman, (CFO and COO), Tom Littlechild,

(Director)

Location of Hearing:

Hearing Dates:

By Virtual Platform

December 24, 2021, January 3-5, 2022.

Written submissions

January 21, January 28, February 4,

February 15, February 22, 2022

Panel Discussions:

Award Date

February 15, March 2, April 18, April 29,

May 1, May 3, 2022

May 4, 2022

1

AWARD INDEX

I

Introduction

Para 1

Para 2

Para 6

Para 11

II

The Parties

III

IV

Labour Relations Board’s Findings of Bad Faith Bargaining

A Difficult and Protracted Start to the Collective Bargaining

Relationship

V

Enhanced Mediation Process

Para 45

Para 57

VI

VII

Events After Enhanced Mediation

The Arbitration Process

Para 61

VIII Employer’s Evidence

Para 63

IX

X

Comparators and Evidence of the Union

Overview of the Positions of the Parties

General Interest Arbitration Principles

Para 78

Para 87

XI

XII

Para 96

Level of Deference Owed to Enhanced Mediator

Para 101

Para 119

Para 128

Para 129

Para 132

Para 140

Para 147

Para 154

Para 158

Para 162

Para 169

Para 175

Para 203

Para 211

XIII Items Remaining in Dispute

XIV Analysis

A

B

C

D

E

F

G

H

I

Changes by Consent

Article 4.05 – Recognition

Article 12 – Hours of Work

Article 12.06(b) – Schedule Posting and Schedule Changes

Article 12.06(c) – Schedule Posting and Schedule Changes

Article 21.08(a)(i) – Bereavement Leave

Article 25.10 – Discipline and Dismissal

Article 25.07

Financial Provisions: Salary Appendix, Retroactivity

(1) Pandemic No Excuse to Breach Legal Responsibilities

(2) Determination of the Compensation Matters in Dispute in the

Salary Appendix

2

(3) Retroactivity

Para 228

Para 238

J

Article 28 and Letter of Understanding #3: Recognition of Prior

Experience

K

Letter of Understanding #5: Flexible Spending Account

Para 252

Para 261

Para 265

XV

Summary and Conclusion

XVI Addendum

I.

INTRODUCTION

[1]

This is a first collective agreement dispute between Siksika Health Services

(SHS or the Employer) and Health Sciences Association of Alberta (HSAA or the

Union). By Order dated August 5, 2021 (the Referral to First Contract Arbitration

Decision),¹the Labour Relations Board appointed myself together with nominees from

each party (Trina Avey, nominee for the Union, and Deb Milimaka-Miles, nominee for

the Employer) to determine the first collective agreement for the parties. This Award

resolves all items remaining in dispute and establishes the first Collective Agreement for

the parties.

II.

THE PARTIES

[2]

The Employer is a not-for-profit organization created by the Siksika Nation. As

part of its mandate, it operates an emergency medical service (Siksika Emergency

Medical Service or SEMS) which began in 1999 when SHS took over the Blackfoot

Ambulance Service. SHS operates with a Board of Directors, a Chief Executive Officer

and a Fire Marshall. SHS provides services to Siksika Nation members on and off

reserve as well as providing services as-needed to non-Siksika Nation members

travelling through Siksika Nation lands or as directed by Alberta Health Services (AHS).

[3]

The Siksika Emergency Medical Services operates out of the fire hall and SHS

allocates part of its budget for building rent and maintenance as well as ambulance

maintenance and replacement. SHS operates two frontline ambulances at the

advanced life support level and has two backup ambulances.

[4]

Siksika Nation has a total population of approximately 9000 members. Siksika

Nation is part of the Blackfoot Confederacy which also consists of the Piikani and

Kainaiwa First Nations of southern Alberta and the Blackfeet in the State of Montana.

Siksika Nation has no tax base and does not financially subsidize SHS.

¹HSAA v SiksikaHealth Services and Certain Employees of SiksikaHealth Services, 2021 CanLII 69979

3

[5]

HSAA is a trade union representing over 27,000 paramedical technical,

professional and general support employees in the public and private health-care

sectors of Alberta. HSAA represents ambulance workers (also known as Paramedical

Technical workers) in at least eight bargaining units in the province, which comprises

the majority of these employees.

III.

LABOUR RELATIONS BOARD’S FINDINGS OF BAD FAITH BARGAINING

[6]

As compared to other labour relations disagreements, this is a long-outstanding

dispute between the parties in reaching a first collective agreement. First starting with

the Union’s application to the Alberta Labour Relations Board in December 2016 to

become the bargaining agent for "all ambulance attendants" of SHS, the Employer

began a constitutional challenge to the authority of the Labour Relations Board to certify

HSAA as a bargaining agent on First Nations’ territory. This constitutional challenge

took SHS through multiple applications and court hearings before the Labour Relations

Board, the Court of Queen’s Bench of Alberta, the Alberta Court of Appeal, and finally to

the Supreme Court of Canada which refused SHS’s final appeal application in June

2020.

[7]

But even after the Supreme Court of Canada dismissed the Employer’s

constitutional challenge, and as found by the Labour Relations Board in its August 5,

2021, Referral to First Contract Arbitration Decision, the Employer refused to engage in

good faith bargaining with the Union, instead using conduct aimed at frustrating the

bargaining process with the apparent intent of encouraging efforts by employees to

revoke HSAA’s certification. The Labour Relations Board found the Employer did not

engage in good faith bargaining. It did not meet with the Union to bargain and did not

provide any proposals to the Union to consider. In so doing, the Employer adopted “an

extreme bargaining position” and engaged in a “deliberate effort at union avoidance”.

After reviewing the Union’s efforts to engage the Employer in bargaining, the Mediator’s

inability to even get a proposal from the Employer to put forward to the Union, and the

Employer’s obvious efforts to avoid collective bargaining, the Labour Relations Board

concludes in its Referral to First Contract Arbitration Decision:

[126] The Board is convinced on the evidence that the failure of SHS to

dedicate the time, resources and energy necessary and commensurate

with its statutory obligation to bargain and participate in the Division 14.1

process was a choice of priorities. This choice is evident from SHS’s

failure to do nearly anything in furtherance of bargaining from June 2020

to the end of the mediation process, beyond providing “general

comments” on a single day of bargaining. SHS chose not to begin

preparations for bargaining. It chose not to prepare to do so even after it

had consented to the mediation process. It continued to choose not to

direct any urgent time or resources into the process, despite being in the

4

middle of a legal process ordered by the Board. It did so despite the

Mediator’s specific directions as to the timelines for that process, which

were issued after, and with proper consideration of, SHS’s arguments

that further delay was warranted due to COVID. The Board and the

Mediator heard SHS’s requests for essentially blanket permission to do

nothing in this process due to COVID several times, and those requests

were routinely not accepted. The urgency with which the Board and the

Mediator were treating the obligation to engage in the bargaining process

cannot possibly have been lost on SHS. This was a long-delayed first

contract situation, not analogous to other negotiations during COVID in

more mature bargaining relationships. SHS had legal obligations under

Division 14.1 of the Code, and these were still not treated as a priority

which demanded SHS’s attention. There is no question on the evidence

that SHS had the capability of doing far more.

[127] While not necessary for its decision to direct arbitration, the Board

would be further prepared to infer this failure to direct time, energy and

resources towards the bargaining process was a deliberate effort by SHS

to undermine the bargaining relationship. The evidence is clear that SHS

avoided any engagement with HSAA, even when stays were not in place.

It avoided providing HSAA with information about the bargaining unit –

information at the very core of a union’s ability to represent the

bargaining unit – even after the Court of Appeal’s limited stay made clear

that while HSAA might be precluded from bargaining it otherwise had full

representational rights for the bargaining unit. The evidence is clear that

failure had a negative impact on HSAA’s communications and

relationship with the members of the bargaining unit. And when all

challenges to the certification were at an end, SHS still provided no

response to HSAA’s communications concerning bargaining – not even

making a request to forestall bargaining – until HSAA had sought the

Board’s assistance. SHS’s entire course of action must be viewed in the

context of anticipating imminent revocation applications: the fact a

revocation application had been made was referenced in SHS’s very first

response to the first contract assistance request in August of 2020. There

was hardly any doubt another revocation application would be

forthcoming when the first was ruled untimely.

[128] … Put simply, reaching the end of Enhanced Mediation without

providing any bargaining proposal whatsoever is an extreme bargaining

position. Reaching the end of Enhanced Mediation having only

participated in that process to the extent revealed in the facts above

constitutes a failure to negotiate with the union. For the reasons outlined

above, the Board is not satisfied that COVID forced SHS into this

5

situation and that it is blameless as relates to these factors. The evidence

shows SHS chose not to apply the time or resources necessary to

engage more than minimally in the Division 14.1 process. Its lack of

action has completely frustrated that process. Further, while not

necessary for the Board’s decision, we find it did so in a deliberate effort

at union avoidance.

[8]

The Board found all of these factors supported the referral to arbitration and the

appointment of this Arbitration Board.

[9] Unfortunately, the Employer’s refusal to engage in collective bargaining and

adoption of its extreme bargaining position resulted in absolutely no terms of

employment being discussed at the bargaining table, let alone being agreed to. During

the course of this arbitration, SHS agreed with a number of the articles recommended

2

by the Mediator in the Enhanced Mediator’s Report and the parties have mutually

agreed to other changes which jointly make sense to change. As a consequence, there

are relatively few actual determinations that need to be made by this Arbitration Board

with the biggest issues relating, not too surprisingly, to monetary and jurisdiction

concerns.

[10] Given the difficult and protracted history between the Employer and Union and

the significant length of time in finally getting to a first collective agreement, the

Arbitration Board believes that setting out this history in more detail will put its decision

surrounding the terms of the first collective agreement which follow in better context.

IV.

A DIFFICULT AND PROTRACTED START TO THE

COLLECTIVE BARGAINING RELATIONSHIP

[11] The parties spent a considerable amount of time on this history in the Agreed

Statement of Facts presented to the Arbitration Board. It is hoped that, while lengthy,

setting out this background in detail will explain the delay for those both within the

bargaining unit as well as those within the organizations of SHS and HSAA who must

now attempt to find a way to work together towards success.

[12] The following information was provided to the Arbitration Board by the parties in

an Agreed Statement of Facts and has been supplemented by background provided by

the Mediator in her Enhanced Mediator’s Report as well as decisions from the Labour

Relations Board.

[13] On December 2, 2016, HSAA applied to the Labour Relations Board to be

certified as the bargaining agent for "all ambulance attendants" of SHS.

²Enhanced Mediator’s Report by Mediator Deborah Howes, February 2, 2021

6

[14] On December 19, 2016, the Labour Relations Board directed a vote of the

proposed bargaining unit to be conducted on December 22, 2016. That same day, the

then Chief of Siksika Emergency Medical Services circulated a memo (the Memo) to

"Siksika EMS employees”. In response to the Memo, HSAA filed an unfair labour

practice complaint on December 20, 2016.

[15] The vote was conducted December 22, 2016 and the ballots were sealed

pending the resolution of objections by SHS, including SHS’s challenge to the Labour

Relations Board's jurisdiction.

[16] On June 2, 2017 the Labour Relations Board dismissed SHS's jurisdictional

challenge.³The vote was counted June 13, 2017, resulting in majority support for

certification and a Certification Order was issued the same day. Immediately following

the Certification Order, HSAA withdrew its unfair labour practice complaint.

[17] HSAA served a notice to bargain on SHS on June 19, 2017.

[18] On July 4, 2017, HSAA wrote to SHS requesting membership information and

disclosure to enable HSAA to prepare its bargaining proposals.

[19] On July 5, 2017, SHS applied to the Court of Queen's Bench for judicial review of

the Labour Relations Board’s certification and jurisdiction decision.

[20] On July 18, 2017, HSAA wrote to SHS asking to schedule a teleconference to

discuss bargaining preparations. HSAA followed up on its July 18, 2017

correspondence to SHS on July 24, 2017, and again on August 8 and 15, 2017, seeking

disclosure from SHS as well as dates for bargaining. In its letter of August 15, 2017,

HSAA specifically referenced the delay in bargaining and asked for a reply from SHS.

[21] Hearing no response from SHS, HSAA filed another unfair labour practice

complaint against SHS before the Labour Relations Board alleging a failure to bargain

in good faith on August 23, 2017.

[22] In the interim, and after receiving the Labour Relations Board’s decision granting

HSAA’s certification, SHS applied to the Labour Relations Board for a stay of the

certification decision pending SHS’s judicial review application. The Labour Relations

Board denied the Employer’s stay application on September 18, 2017.⁴

³Health Sciences Associationof Alberta v. SiksikaHealth Services, [2017] Alta. LRBR 35, 2017 CanLII

72953 (AB LRB) – certificationapplicationgranted dated June 2, 2017.

⁴SiksikaHealth Services v Health Sciences Associationof Alberta, [2017] Alta. LRBR LD-080, 2017

CanLII 61259 (AB LRB) – stay application denied dated September 18, 2017.

7

[23] Following receipt of the Labour Relations Board’s September 18, 2017 decision,

SHS applied to the Court of Queen's Bench for a stay of the certification order of the

Labour Relations Board. In an interim ruling dated October 26, 2017, confirmed in

writing November 20, 2017, the Court of Queen’s Bench granted the stay pending the

judicial review hearing.⁵

[24] Justice R.E. Nation of the Court of Queen’s Bench heard the Employer’s judicial

review application and, in a decision issued August 9, 2018 (the Judicial Review

Decision), ⁶held the Labour Relations Board came to the correct conclusion in finding

that the presumption of provincial regulation of labour relations was not rebutted in this

case. As a consequence, the Court upheld the Labour Relations Board’s original

decision granting HSAA’s certification application.

[25] After receipt of the Judicial Review Decision, HSAA again attempted to set up

bargaining dates with SHS, updated its bargaining committee, and sought disclosure

from SHS. SHS did not respond to any of these letters.

[26] On September 10, 2018, SHS filed a Notice of Appeal to the Alberta Court of

Appeal of the Judicial Review Decision.

[27] On October 30, 2018, HSAA made its first application for assistance from the

Labour Relations Board for the settlement of a first collective agreement. At a

Resolution Conference mandated by the Labour Relations Board on December 10,

2018, the parties agreed to conduct a "Meet and Greet" in furtherance of collective

bargaining in January or February 2019. HSAA’s application for settlement of a first

collective agreement was adjourned sine die.

[28] Meanwhile, SHS continued its constitutional challenge before the courts to the

authority of the Labour Relations Board to certify HSAA as a bargaining agent on First

Nation’s territory. SHS sought a stay of the Judicial Review Decision before the Court of

Queen’s Bench pending its appeal to the Court of Appeal. The stay was denied by the

Judicial Review Decision judge on December 19, 2018.

[29] SHS and HSAA met February 22, 2019 but no bargaining occurred. The parties

communicated throughout January through June 2019 but had no further meetings in

that time frame.

[30] Having been denied a stay by the Court of Queen’s Bench, SHS brought an

application before the Court of Appeal seeking a stay from that court until the Court of

⁵SiksikaHealth Services v Health Sciences Associationof Alberta, 2017 ABQB 683 – stay application

granted on interim basis October 26, 2017, confirmed by decision dated November 20, 2017;

⁶SiksikaHealth Services v Health Sciences Associationof Alberta, 2018 ABQB 591 – judicial review

denied August 9, 2018.

8

Appeal heard and decided on the appeal from the Judicial Review Decision. On May 6,

2019, Justice J. Strekaf of the Court Appeal, sitting alone, granted SHS’s application for

a stay to the extent that neither party was required to proceed with any steps towards

negotiating a collective agreement pending disposition of the appeal before the Court of

Appeal (para 20).⁷In granting this stay, the Court of Appeal specifically noted the

threshold for establishing an arguable issue is low and that the Union and SEMS

workers have suffered irreparable harm as a result of the stay that has been in place

and would continue to be in place if the appeal was ultimately dismissed.

[31] In argument before us, SHS points specifically to both the Court of Queen’s

Bench and Alberta Court of Appeal decisions granting its stay applications and the

Courts’ determinations that there was an arguable case to be tried. SHS suggests this

shows its legal argument had merit and was not merely a delay tactic as insinuated by

HSAA. However, while granting SHS’s stay application, the Court of Appeal was very

aware that HSAA and the employees had already suffered irreparable harm and would

continue to face harm if the stay being granted. The Court recognized that the Union’s

majority support would weaken and could result in the loss of representational rights:

[16] The Union submits, and I accept, that the Union and the SHS

ambulance workers have suffered irreparable harm as a result of the stay

that has been in place and that this harm will continue if a stay is granted

pending the appeal, and the appeal is ultimately dismissed. The nature of

that harm was described by the Board when it refused the initial request

for a stay (Siksika Heath Services v Health Sciences Association of

Alberta, 2017 CanLII 61259 (ABLRB) at para 30):

In relation to the harm likely to be suffered by the Union, the maxim

“labour relations delayed is labour relations denied” accurately

describes the effect of staying a certification order. During the

period of the stay, which can be in effect for a considerable period

of time, the Union is prevented from representing employees in the

bargaining unit with respect to their employment issues and lacks

the ability to require the Employer to engage in collective

bargaining. Having garnered majority support among the

employees in the bargaining unit, the Union’s ineffectiveness as

bargaining agent will more than likely result in a withering away of

its support. In addition, the workplace does not remain static –

employees come and go; the Employer continues to have access to

the employees; there are no legal impediments preventing the

Employer from changing the terms or conditions of employment;

and, the employees remain unrepresented in their dealings with the

⁷SiksikaHealth Services v Health Sciences Associationof Alberta, 2019 ABCA 169 – stay application

granted dated May 6, 2019

9

Employer. Given the length of time it normally takes to conclude a

judicial review application, a stay of the Decision and order would

most likely result in a loss of the Union’s representational rights.

[32] Notwithstanding the irreparable harm which has befallen the Union and

ambulance workers, the Court of Appeal, following the test set out in RJR-MacDonald v

Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, determined the

balance of convenience weighed in favour of Siksika Nation and SHS in relation to its

constitutionally protected right to self-government and its treaty rights under the

Constitution Act, 1982, as well as its potential of non-recoverable costs.

[33] In light of the Court of Appeal's stay of proceedings, HSAA withdrew its

application before the Labour Relations Board alleging SHS was engaging in bad faith

bargaining.

[34] The Court of Appeal heard the appeal of the Judicial Review Decision in

November 2019. In a decision issued December 17, 2019, the Court of Appeal denied

SHS’s appeal.⁸

[35] On January 16, 2020, HSAA wrote to SHS proposing new bargaining dates.

HSAA followed up on February 5, 2020 and February 25, 2020. SHS did not respond to

HSAA.

[36] On February 14, 2020, SHS applied for leave to appeal to the Supreme Court of

Canada.

[37] On March 3, 2020, HSAA made another application to the Labour Relations

Board seeking assistance in settling the terms of the first collective agreement. Again, in

light of SHS’s application for leave to appeal to the Supreme Court of Canada, HSAA

withdrew this second application for assistance from the Labour Relations Board on

March 4, 2020.

[38] On June 11, 2020, the Supreme Court of Canada denied SHS’s application for

leave to appeal.⁹In so doing, the Supreme Court of Canada effectively upheld the

original certification application made by HSAA on December 2, 2016 and granted by

the Labour Relations Board on June 13, 2017.

[39] On June 18, 2020 HSAA wrote to SHS asking for SHS's proposed bargaining

dates and committee. SHS did not respond. HSAA wrote to SHS again on June 26,

⁸SiksikaHealth Services v Health Sciences Associationof Alberta, 2019 ABCA 494 – appeal dismissed

dated December 17, 2019.

⁹SiksikaHealth Services v. Health Sciences Associationof Alberta, et al., 2020 CanLII 39202 (SCC) –

application for leave to appeal denied dated June 11, 2020

10

2020 advising that, if SHS did not respond by July 9, 2020, HSAA would, once again,

seek assistance from the Labour Relations Board for the settlement of a first collective

agreement.

[40] Before HSAA followed through with another application to the Labour Relations

Board, as anticipated by the Union and confirmed by Labour Relations Board in its

denial of the Employer’s original stay application in 2017, and as acknowledged by the

Court of Appeal as a likelihood when granting the last stay application, the expected

revocation application was filed. Almost immediately after the Supreme Court of Canada

dismissed the Employer’s leave to appeal, a group of employees within HSAA’s

bargaining unit applied for revocation of HSAA’s bargaining certificate. On August 7,

2020, the Labour Relations Board dismissed the July 3, 2020 revocation application as

untimely given that the minimum period of 10 months required pursuant to the Labour

Relations Code (section 52(3)(b)) had not passed since the date of the conclusion or

final disposition of the judicial review proceedings.¹⁰Thus the revocation application

could not comply with the time requirements set out in section 52(3)(b) of the Code.

[41] On July 10, 2020, HSAA made its third application to the Labour Relations Board

for assistance in resolving the terms of the first collective agreement. The Labour

Relations Board directed SHS to reply to HSAA's application by July 31, 2020.

[42] On July 27, 2020, SHS wrote to the Labour Relations Board requesting an

extension. SHS's deadline was extended to August 7, 2020.

[43] SHS filed a reply August 7, 2020, again requesting that the hearing of the matter

be stayed due to the COVID-19 pandemic.

[44] The Labour Relations Board denied SHS’s adjournment application, instead

directing the parties to attend before it for a resolution conference. The parties met with

a Vice-Chair of the Labour Relations Board on September 14, 2020, and, with the

consent of the parties, the Labour Relations Board issued an Enhanced Mediation

Directive under section 92.2 of the Code appointing the Mediator.

V.

ENHANCED MEDIATION PROCESS

[45] Under the terms of the Enhanced Mediation Directive, the Labour Relations

Board appointed Mediator Howes to assist the parties in attempting to reach their first

collective agreement. The Directive stipulated that the Mediator conduct up to 5 days of

informal mediation and that the mediation could be changed to enhanced mediation by

¹⁰Certain Employees of SiksikaHealth Services v SiksikaHealth Services, [2020] Alta LRBR LD-061,

2020 CanLII 54565 (AB LRB)

11

request from the Mediator or on application of one of the parties. Mediation was to

commence in November 2020 and be completed by December 31, 2020.

[46] On September 21, 2020, the Mediator learned the parties had not exchanged

any proposals or held any bargaining discussions. Upon contacting the Employer, the

Mediator was referred by the Employer to its legal counsel. After multiple emails and

phone messages, the Mediator was finally able to connect with the Employer’s legal

counsel who advised her the Employer had not yet established a bargaining committee

or prepared any proposals. Legal counsel committed to respond by the end of October.

[47] The Employer failed to respond to the Mediator so the Mediator set dates for

mediation based on the dates the parties identified in September.¹¹The Mediator met

with the Union on December 4 and 8, 2020 to obtain their proposals and rationale. The

Mediator was next to meet with the Employer on December 17 and 18, 2020 as per the

Mediator’s schedule. Instead, on December 14, 2020, the Employer advised the

Mediator it was seeking an adjournment of the mediation until late January because of

the COVID situation on the Siksika Nation.

[48] On December 16, 2020 the Mediator set up a tentative schedule for the

mediation for January and confirmed the time limits would be extended if the parties

committed to the dates and process in the tentative schedule. Both parties confirmed

their availability, and the Mediator extended the time limits to February 2, 2021.

[49] In conjunction with this extension, the Mediator applied to the Labour Relations

Board requesting that informal mediation be changed to Enhanced Mediation. The

Employer objected to the application. Notwithstanding the Employer’s objection, the

Labour Relations Board issued a Varied Enhanced Mediation Directive dated December

21, 2020.¹²

[50] The Mediator set up a schedule of meetings with the parties. The Employer’s full

bargaining committee never did meet with the Mediator; rather, at the first meeting

scheduled by the Mediator with SHS on January 18, 2021, only the Employer’s legal

counsel was in attendance. Notwithstanding this, the Mediator discussed HSAA’s

proposals and rationale and requested information from SHS. At the second scheduled

meeting with SHS on January 22, 2021, three of the five members of the Employer’s

bargaining committee attended. The Employer’s representatives confirmed the

Employer’s bargaining committee consisted of five individuals and provided the

Mediator with general comments, concerns, and questions. SHS provided no formal

proposals for the Mediator to take to the Union.

¹¹Enhanced Mediator’s Report Explanations for Recommendations document by Mediator Deborah

Howes, February 2, 2021, page 5.

¹²Health Sciences Associationof Alberta v SiksikaHealth Services, [2020] Alta. LRBR BD-018, 2020

CanLII 102346 (AB LRB)

12

[51] On January 27, 2021, the Mediator then met jointly with both the Union and SHS.

At that meeting the Employer requested a further extension of the mediation until March

31, 2021 for the same reasons as expressed in December 2020. The Employer was

not prepared to provide a tentative schedule of meetings for its committee or the

mediation to accommodate a March 31 deadline. At best SHS told the Mediator and

Union that its committee may be able to meet close to the end of March. The Union did

not agree with the adjournment request.

[52] On January 28, 2021, the Mediator advised the parties she would not agree to

extend the time limits and would be issuing her Enhanced Mediator’s recommendations

instead.

[53] The Mediator provided her Enhanced Mediator’s Report on February 2, 2021.

[54] In providing recommendations for a full collective agreement for the parties, the

Mediator acknowledged she only had limited input and general comments from SHS

during the process and never received an official position from SHS because the

Employer’s bargaining committee never met to review the Union’s full proposals. The

Mediator indicated she nonetheless attempted to capture the Employer’s general

comments in her Report. She also confirmed she reviewed all the documents provided

to her by the Employer and Union.

[55] The Mediator noted that the Union fully engaged in the mediation and enhanced

mediation.

[56] Throughout this process, the parties did not meet together to engage in

bargaining. As a consequence, the parties did not resolve any items between them in

bargaining, mediation, or enhanced mediation. Not only were no items resolved in

bargaining, the Employer never provided a bargaining proposal to HSAA to consider.

VI.

EVENTS AFTER ENHANCED MEDIATION

[57] Upon the issuance of the Enhanced Mediator’s Report, the Union put it before its

membership for a ratification vote on February 5, 2021. The Union’s membership voted

against ratifying the agreement. The Employer also refused to accept the

recommendations of the Mediator.

[58] With the rejection of the recommendations set out in the Enhanced Mediator’s

Report by both the Employer and employees, HSAA made application to the Labour

Relations Board on February 23, 2021 for the matter to proceed to first contract

arbitration. SHS filed a reply on March 10, 2021, seeking adjournment of HSAA’s

application pending stabilization of the COVID-19 pandemic. The Employer also

13

disputed the Labour Relations Board’s jurisdiction under section 92 of the Code. In a

decision issued April 23, 2021, the Labour Relations Board dismissed the Employer’s

adjournment application and determined that this is a first contract arbitration request

governed by section 92.3 as it existed prior to legislative changes to the Labour

Relations Board’s first contract arbitration power.¹³

[59] In the intervening period between the date of its application for first contract

arbitration and the Labour Relations Board’s April 23^rdDecision, HSAA filed both

another unfair labour practice complaint against SHS, as well as another complaint

when the Employer failed to post the notice of that complaint in the workplace as

required by the Code and ordered by the Labour Relations Board.

[60] Tensions were obviously running high in the workplace at this time because on

April 16, 2021, the Board received a second application for revocation. The Labour

Relations Board dismissed this second attempt at revocation in its August 5, 2021,

Referral to First Contract Arbitration Decision. In dismissing the employees’ revocation

application, the Labour Relations Board again references the conduct of SHS

throughout the process and notes that the Employer’s conduct may well have unduly

and inappropriately impacted the impressions of employees. It notes the legislation is

designed to provide the parties with a period of peace in which all parties can develop a

greater familiarity with each other and the proper processes of a certified bargaining

relationship:

[133] As explained in paragraphs 16 - 28 above, as the Board has

declared this dispute shall be resolved by arbitration, the revocation

application cannot proceed, and it is dismissed.

[134] The Board stresses that this is not a reflection on any actions of the

Revocation Applicants, and the Board anticipates their frustration. The

evidence reveals there is a portion of the bargaining unit deeply opposed

to the certification and eager to pursue revocation, just as there is a

portion of the bargaining unit deeply supportive of HSAA. The Board

would simply reiterate its comments above, that the first contract sections

of the Code are intended to protect the new bargaining relationship as a

whole, and particularly the impressions of the “persuadable middle”

about that bargaining relationship, from being unduly and inappropriately

impacted by the actions of the employer. That is what the Board has

found here. This is not a “technicality”. The actions of SHS have resulted

in it being necessary to ensure a collective agreement be reached via

arbitration, with a resulting period of peace in which all parties can

develop a greater familiarity with the proper processes of a certified

¹³HSAA v SiksikaHealth Services, [2021] Alta LRBR 78

14

bargaining relationship. In the end, this may not change any minds

among the Revocation Applicants. However, it is entirely necessary to

protect the bargaining relationship as a whole as a result of the actions of

SHS.

[135] The Board has not answered many of the legal questions posed

about the revocation application, and as a result of the dismissal on the

above grounds, it will not do so. The Board would, however, observe in

obiter that an employer keeping a known organizer of a revocation

campaign in a position to unilaterally determine the scheduling of casual

employees without direction or oversight from management could

certainly be seen as inappropriate employer support for the revocation

application, and may raise fundamental concerns about the revocation

application.

VII. THE ARBITRATION PROCESS

[61] This Arbitration Board was officially appointed by the Labour Relations Board on

August 5, 2021. The arbitration was originally scheduled to proceed November 8-10,

2021. Through no fault of anyone, these dates were adjourned on November 5, 2021

when counsel for SHS could not proceed with the arbitration. New counsel from the

same law firm took over the conduct of the file and new dates were set for the

arbitration.

[62] The Arbitration Board met with counsel for the parties in a case management

meeting on December 24, 2021, and then heard viva voce evidence from four witnesses

January 3 through 5, 2022. As part of the hearing process, the parties submitted an

Agreed Statement of Facts with 32 attachments together with 20 exhibits including an

economic analysis of SHS and comparator collective agreements. At the conclusion of

evidence, the parties submitted written submissions on January 21, January 28,

February 4, February 17, and February 22, 2022.

VIII. EMPLOYER’S EVIDENCE

[63] The Employer called two witnesses: Tom Littlechild, the Director of Siksika

Emergency Medical Services for SHS, and Vicki Yellow Old Woman, the Chief Financial

Officer and Chief Operating Officer for SHS. Before hearing from Ms. Yellow Old

Woman, SHS sought an adjournment of the arbitration hearing because of an outbreak

of Covid-19 on the First Nation arguing that the levels of Covid had moved the First

Nation into Code Red. SHS argued that Ms. Yellow Old Woman was urgently needed

and required. While the Arbitration Board was sympathetic of the amount of time Ms.

Yellow Old Woman was having to spend dealing with the pandemic over and above her

other responsibilities, the Arbitration Board denied the request, ruling she was not

15

providing front-line care. Further, and as we were proceeding virtually, if she was

urgently needed to make a decision within her role, we could have a brief adjournment

to allow her to participate in meetings before reattending to provide evidence virtually.

[64] Mr. Littlechild confirmed his group, the Siksika Emergency Medical Services, is

one of several services overseen by SHS. SHS offers health services at the clinic on the

Siksika Nation where there are doctors, nurses, dentistry, and mental health services.

The SEMS operates out of the Fire Station which Mr. Littlechild is also responsible for.

SHS offers various other programs including Elders Services, Clinical Service,

Community Health, Home Care, Elders Lodge, Community Wellness, Disabilities,

Recreation, and Cultural Support Services.

[65] SHS gets its funding for SEMS from four sources. The largest portion of its

funding comes from Alberta Health Services (AHS) – about $88,000 per month. Health

Canada, a federal entity, covers non-insured coverage which is a fee-for-service. When

crews go out to service a call, SEMS is paid a fixed amount per kilometer and service

provided. This amount varies month to month and year to year as it depends on the

number of calls received. In a typical year, SEMS invoices Health Canada between

$600,000-$800,000. The third funding source is insurance payable as a result of motor

vehicle accidents. Again, this is another fee-for-service for which SHS receives between

$15,000-$20,000 annually. The last funding source is Alberta Blue Cross which pays for

elder transport in a fixed amount. This accounts for between $15,000-$18,000 in

revenue annually. The ambulance service has no other source of funding and,

according to both Mr. Littlechild and Ms. Yellow Old Woman, receives no funding from

the Siksika Nation. Both Mr. Littlechild and Ms. Yellow Old Woman agreed the contract

with AHS is negotiable and SHS is paid the amount agreed upon with AHS. Neither

witness had knowledge of entities who were unionized with contracts with AHS so

neither could speak to how, or how much, AHS contracts with these other ambulance

providers.

[66] SHS employs 16 full-time paramedics consisting of 8 Advanced Care

Paramedics (ACPs) and 8 Primary Care Paramedics (PCPs) as well as a pool of

approximately 50 casual paramedics who are called on from time-to-time as needed.

Pursuant to the contract with AHS, SHS must provide two Advanced Life Support

vehicles 90% of the time to Siksika Nation and the buffer zone around the Nation.

SEMS has two front line trucks and two mechanical back-ups. The back-ups are older.

The front-line vehicles are relatively new having become operational in March or April

2021. One of the older vehicles is quite old while the other is one of the former front-line

ambulances. Another new truck is on order which will technically be a back-up.

[67] According to Mr. Littlechild, the Employer’s desired – and needed schedule –

should include two ACPs and two PCPs on shift at any time; one ACP and one PCP per

vehicle. If they do not have an ACP in an ambulance, it does not qualify as an

16

Advanced Life Support ambulance and cannot handle some calls. Currently, and after

canvassing the paramedics, paramedics work a 48-hour shift with 6 days off. This is

known as a “2 on, 6 off” shift. Mr. Littlechild agreed in his evidence that not only is this

shift desirable for employees, it works well for SEMS as well. Mr. Littlechild confirmed

that this schedule was posted and voted upon before implementing and the result was

pretty well unanimous: working a 48-hour shift with 6 days off was much more attractive

to work within the emergency medical service. This is because travel to and from work

is an issue for the majority of SHS employees. While four of the full-time paramedics are

Siksika Nation members, the other 12 live elsewhere including Calgary and Strathmore.

[68] Mr. Littlechild said that if this Arbitration Board awarded employees more monies

than that which SHS could afford, SHS would have to consider altering the 2 on, 6 off

shift-schedule to something more affordable. However, in making this statement, he did

not offer rationale or evidence as to how much it would save SHS. He also agreed in

cross-examination that because of Siksika Nation’s geographic location, a change in the

shift schedule with less pay could cause difficulty in recruiting and filling positions.

[69] The schedule is set as far in the future as possible, usually two months in

advance. It has been problematic to maintain the posted schedule because of Covid

and employees being asked not to come in if they feel sick or display any symptoms. If

the schedulers cannot fill in the gaps either with full-time or casuals, they seek

permission from Mr. Littlechild to offer overtime. Mr. Littlechild indicates he approves

payment of overtime if it is on short-term notice. However, if its 10 or 14 days out, he

prefers to fill positions off the casual list.

[70] Mr. Littlechild confirmed the casual pool fluctuates and he uses casuals to backfill

gaps in the schedule because of illness, leaves or vacation.

[71] With respect to wages for full-time employees, Mr. Littlechild said wages are

based on fit and skill-set. He acknowledged on cross-examination that some shorter-

term PCPs were paid more than at least one longer-term PCP although all were a good

fit and had the same skill-sets and should be paid the same wage. He suggested that

the one longer-term PCP may have been paid less because he was a Siksika Nation

member and thus did not have to pay personal income tax and perhaps this was taken

into account in assigning his wage level. However, Ms. Yellow Old Woman confirmed in

subsequent evidence that Mr. Littlechild was incorrect; Siksika Nation does not have a

policy to pay its’ employees who are Siksika Nation members less because first nations’

individuals are not required to pay federal income tax.

[72] With respect to wages for casual employees, Mr. Littlechild confirmed they

receive less than full-time employees and also do not receive benefits.

17

[73] Ms. Yellow Old Woman oversees all finances for SHS. She reviewed the

finances of SHS generally, and the SEMS group in particular. She identified that most of

the funding for SHS comes with very focused funding criteria, payable for a very specific

service by a very specific funding source. The funds cannot be used elsewhere to offset

loses or deficits from other programs. Examples include mental wellness dollars as well

as capital building funds received for the Elders Lodge or funding for specific programs

such as the Jordan’s Principle. The latter, for example, involved sizeable dedicated

funding from a government program for funding for children on the reserve who are

mentally or physically challenged. These are restricted and dedicated funding programs

and destinations which cannot be utilized for any other purpose.

[74] While some years may show as a small surplus in the year-end financial

statements, it depends on when the money is received from its providers and when it is

paid. For the 2019 fiscal year, for instance, the audited statements showed a surplus,

but of that, $700,000 was funding received for the Jordan’s Principle which was carried

over into the next year as was another $400,000 received to address the Opioid crisis

within Siksika Nation. Ms. Yellow Old Woman said SHS was actually in a deficit

position, not a surplus as it looked like on paper. Similar analysis was done for 2020

with much of the revenue tied directly to an increase in the Jordan’s Principle funding.

[75] As for funding specifically for the Siksika Emergency Medical Service, Ms. Yellow

Old Woman reviewed the schedules for the Financial Statements for the year ending

March 31, 2021 and noted total revenues for SEMS have decreased primarily because

Health Canada funding went down the last couple of year. She noted this is a straight

cost recovery program and the decrease is due to a decrease in the number of calls

being down. The Financial Statements disclose that while accounting is behind in

sending out its accounts, even with this added revenue, the SEMS is running a net

deficit and has been in a deficit position year over year. She also confirmed that while it

appears there was a surplus overall in this past fiscal year, again, as with the above, the

surplus was because of the late arrival of dedicated funding which can only be allocated

to the specified purpose.

[76] In response to a question on cross-examination as to how the shortfall is made

up given the year-over-year deficit situation, Ms. Yellow Old Woman indicated it is never

really made up. It remains on their books year to year. To this point, SEMS has not had

to claw-back on its services to service the debt. At some point in time SHS will ask the

Nation to forgive the debt.

[77] Ms. Yellow Old Woman did not know if the audits and financial statements were

provided to the Mediator or not for the purposes of her Enhanced Mediator’s Report.

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IX.

COMPARATORS AND EVIDENCE OF THE UNION

[78] The Union called Ryan Mior, employed as a researcher and policy analyst by

HSAA, as well as Mozac Samson, an Advanced Care Paramedic within the bargaining

unit.

[79] Mr. Mior has a Master’s Degree with a focus on research. He is responsible for

doing comparative analysis for collective bargaining for HSAA. As part of his research

for this collective agreement he analyzed key terms and conditions of employment, total

compensations for ACPs and PCPs, SHS’s revenue and expenses, contract language

comparisons, the Enhanced Mediator’s Report, and lastly, HSAA’s own research.

[80] For comparators, Mr. Mior used the data he received about current income for

SHS employees as well as the Enhanced Mediator’s Report which he noted covered 76

SEMS employees. He also looked at several collective agreements including the

collective agreement between AHS and HSAA covering 3,379 emergency medical

service (EMS) employees, as well as several similarly sized bargaining units including

Wheatland EMS covering 54 EMS employees, Bonnyville Regional Fire covering 46

EMS employees, and Cold Lake Ambulance covering 44 EMS employees. Mr. Mior also

looked at wage comparisons from some expired collective agreements with similar

sized employee groups including Wademsa, East Central Ambulance Association, and

the Blood First Nation. In cross-examination, Mr. Mior acknowledged he could have

chosen many other agreements HSAA has negotiated across Alberta, but these

agreements would not have been true comparators as their compensation was a lot

higher by comparison to both the current SHS structure as well as that recommended

within the Enhanced Mediator’s Report. He used the numbers he obtained through web

research as well as through disclosure requests for calculating the current SHS wage

structure. As SHS did not disclose the full information sought by HSAA, he was unable

to be definitive in some areas. As such, he used a range based on the information

which was provided.

[81] Mr. Mior observed that while the Mediator recommended a sizable increase in

compensation for PCPs and ACPs employed with SHS, these recommendations were

still significantly lower than any of the contracts he compared. In his analysis, Mr. Mior

reviewed the total annual and hourly compensation for both the PCPs and ACPs using

information based on 2019 valuations. In arriving at his numbers, he included salary,

benefits, professional registration fees, flexible spending accounts, CPP and EI

contributions, as well as RRSP or LAPP contributions to come up with a total annual

compensation. This amount was then divided by the total number of hours worked per

year (2190) to come up with a total hourly compensation comparator. He agreed in

cross-examination the amounts recommended by the Mediator would be higher going

forward as his calculations did not include recommended increases. However, that

same principle and result applies to all the comparators used as they likewise

19

negotiated increases going forward. Using the highest salary range for each, his

research disclosed the following:

Comparator

Total Hourly

Percentage of

Compensation Compensation Benefit Cost to Total

for PCP

$33.48

for ACP

$39.39

$45.82

Comp for ACP

13.2%

Current SHS

Enhanced Mediator’s $36.05

12.1%

Report

AHS-HSAA

Wheatland

Bonnyville

Cold Lake

$42.80

$45.11

$38.38

$40.84

$54.83

$57.22

$50.64

$52.68

18.4%

20.0%

19.3%

16.9%

[82] Mr. Mior noted the total compensation per hour is made up of both the

employee’s regular wages plus their per hour benefit cost their employer pays on their

behalf. Looking specifically at the Advanced Care Paramedic’s, the highest

compensated comparable per hour is the Wheatland EMS ($57.22/hr) group followed by

AHS EMS ($54.83/hr). The current Siksika EMS total compensation is well below all

other EMS providers in this analysis at $39.39 per hour. The proposed Siksika EMS

contract would elevate the total compensation per hour of employees to $45.82, a

16.3% increase. Mr. Mior’s research also looked at the employer’s portion of the cost of

benefits. He found that Wheatlands benefit cost to total compensation is 20.0% for

ACP’s, compared to SHS’s current benefit cost of 13.2% and the Mediator’s

recommendation of 12.1%.

[83] With respect to the rate of inflation for the period covered by the Collective

Agreement he noted that the CPI increases were: 2018-2.4%; 2019-1.8 %; 2020-

projected 1.1%; and 2021-projected 1.4% but the actuals as of the date of the hearing

was 3.4%. Any wage increase that does not at least match the CPI rate of inflation is

essentially a wage cut.

[84] Mozac Samson also testified on behalf of HSAA and his fellow SEMS employees

and provided an overview of work as an ACP with SHS. He is also employed as a

casual employee working for AHS in Calgary and the rural region around Calgary so

could provide some comparisons between the two. In this regard, he noted that while

the calls he responds to in both Siksika Nation and Calgary are similar in health

concerns and issues, they are not the same.

20

[85] First, distance is a big factor as lengthy travel time requires a great deal more

intervention and interaction with the patient when working for SHS. Secondly, for calls

on reserve, the paramedics take a much more wholistic approach taking account of

what supports the patient has and who the patient is taking care of in return. Within

Calgary, for instance, if a patient is in need of medical care, they transport them to

hospital. On Siksika Nation, the paramedics must be aware of whether the patient has a

ride back from the hospital or whether they have anyone to look after their children. As a

consequence, and rather than simply taking the patient to directly to hospital, the

paramedics have to problem solve to address each patient’s needs in addition to their

health issues. Medical transport and family or friends of the patient calls may have to be

engaged.

[86] Another consequence of being at a distance from the nearest hospital is the

increased responsibility of care. Suturing is not an option for paramedics within Calgary.

Knowledge and protocols of suturing are a must for an ACP within SHS. Similarly, drug

administration, both in the types of drugs and the amounts administered, is different

between the two. Distance also means that the ambulance crews cannot expect back-

up. This applies to both medical back-up and police intervention if necessary. In Calgary

if a paramedic calls for immediate assistance, police converge on the location within

minutes with lights and sirens. The latter usually has the effect of de-escalating a

situation. This simply does not happen within Siksika Nation because of the size of the

geographic area and the limited resources. As a result, paramedics within SEMS must

often use their “soft-skills” to not only “read” a situation, but react to it and sometimes

de-escalate. Ambulance crews are far away from any help so they must rely on critical

analysis and skills. In this regard, the paramedics who are Siksika Nation members are

highly valued by the community and sometimes Mr. Samson, as a member of Siksika

Nation, is able to step in to diffuse situations which sometimes arise between patients

and his non-Siksika Nation partner.

X.

OVERVIEW OF THE POSITIONS OF THE PARTIES

[87] Both parties agree that the Arbitration Board should show a high level of

deference to the Mediator’s recommendations. The parties disagree on how much

deference should be given. There are currently two different approaches in Alberta

under Division 14.1 of the Code to this level of deference. These approaches come from

two different cases decided at roughly the same time so neither decision refers to the

other. As a consequence, this is the first decision where an analysis of the two

approaches will occur to provide some guidance for others and set the approach for

analysis within this decision. With this in mind, the Arbitration Board must consider

UFCW Local 401 v Elbow Grease Management Ltd. (Unreported November 30, 2020)

(Arbitrator Norrie), (referred to as Elbow Grease) and AUPE v Signature Living (Rocky

Ridge) Management Ltd, 2021 CanLII 7104 (Arbitrator Casey) issued February 2, 2021

(referred to as Rocky Ridge).

21

[88] SHS submits the reasoning in Rocky Ridge is compelling, and that the correct

standard of review in this case is that the recommendations by Mediator should be

considered “persuasive” by this Arbitration Board. To put this another way, SHS submits,

there should be a presumption that the recommendations by the Mediator are the

correct outcome and should be followed by this Arbitration Board, but that the

presumption is a rebuttable one. SHS acknowledges it has the onus of rebutting the

presumption at arbitration since it has not accepted all of the Mediator’s

recommendations. The Employer submits that while it did not engage in mediation in a

fulsome manner, it made significant efforts to narrow the collective bargaining issues in

dispute after this was sent to arbitration and during the arbitration itself. The Employer

continued to narrow the issues even at the conclusion of evidence and in argument by

withdrawing its objections to a number of other provisions that were identified as

matters for consideration by the Arbitration Board in its opening submissions. As such, it

says, this is not a case where it seeks to “cherry pick” certain provisions. Rather, argues

the Employer, it is a situation where SHS has made genuine efforts to narrow the issues

in dispute at the enhanced mediation and afterwards, notwithstanding its concerns.

[89] Similarly, SHS contends, this is not a case where SHS seeks “another kick at the

can” at arbitration. Rather, it is a situation where SHS has longstanding and strongly

held concerns about a relatively small number of issues that remain in dispute arising

from its non-profit status and limited funding, and the fact that it serves a First Nations

community.

[90] The Union argues the approach adopted by SHS throughout has been one of

“delay, delay, delay”, with the intent, as found by the Labour Relations Board at para

128 of the August 5, 2021, Referral to First Contract Arbitration Decision, to “frustrate

the process”. The Union alleges the Employer’s failure to bargain is intended to create

conflict and crisis with respect to the Union’s ability to represent their membership and

implement a first agreement.

[91] HSAA contends it is seeking a collective agreement that reflects the current

market and is in line with industry standards. The agreement proposed includes

standard contract language, and a modest increase to wages, and other benefits. The

proposed agreement, while still below the salaries and benefits offered elsewhere, gets

the SEMS closer to direct comparators in the province. This is appropriately reflected in

the Enhanced Mediator’s Report.

[92] HSAA argues that there is no reason not to follow the recommendations

contained within the Enhanced Mediation Report. The Employer’s contention that it

should be considered independently of other market comparators does not meet the

onus in refuting the recommendations.

22

[93] While SHS submits they are not attempting to “cherry pick” certain provisions

recommended via enhanced mediation, and they have attempted to narrow the issues

in dispute, HSAA argues that by not engaging in the normal course of bargaining in any

meaningful way until Interest Arbitration, SHS created a number of issues in dispute

which could have been narrowed well before Arbitration. In HSAA’s opinion, the

Employer is attempting to have yet again, “another kick at the can” at arbitration.

[94] Pointing again to the significant delays created by the Employer, HSAA argues

that unionized employees have been without improvements and increases that they

would likely have enjoyed, but for the bad faith bargaining of the Employer. The

Employer’s actions and continued refusal to bargain in good faith has further

undermined the bargaining relationship between the parties, as well as the Union and

the employees. These employees have also lost ground as comparator groups across

the province received increases during the over three years that the Union has been

working to achieve a first agreement for the employees at SEMS.

[95] Finally, HSAA submits that SHS has not met the high bar required to show that

the enhanced mediation recommendations are out of line with what would be expected

had the Employer engaged in the normal course of bargaining.

XI.

GENERAL INTEREST ARBITRATION PRINCIPLES

[96] Many of the principles followed by arbitrators in interest arbitration proceedings

were enunciated and summarized in a 1993 policy decision emanating from the British

Columbia Labour Relations Board (BCLRB) referred to as Yarrow Lodge ([1993]

BCLRBD No. 463). In Yarrow Lodge, the BCLRB found the collective agreement should

put both parties in the same position they would have been in when bargaining broke

down, not at the time of arbitration. Put another way, the collective agreement imposed

by the arbitration board should replicate the collective agreement the parties could have

achieved through timely and fair conventional collective bargaining.

41. Replication “is to replicate or construct a collective agreement that

reflects as nearly as possible the agreement that conventional bargaining

between the parties would have produced had they themselves, been

successful in concluding a collective agreement. This approach seeks to

put both parties in the same position they would have been had there

been no breakdown in negotiations.” Therefore, it is relevant to consider

the time that collective bargaining broke down, not at the time of the

arbitration, unless there has been a material change in circumstances

since the conclusion of Enhanced Mediation.

[97] Arbitrator Sims enumerated the same policy considerations for interest arbitration

boards in Alberta. In Newport Harbour Care Centre Partnership and AUPE Local 048

23

Chapter 014, [2012] AGAA No 65 at page 3-4, Arbitrator Sims similarly notes that

interest arbitration in this province customarily seeks to replicate the settlement the

parties would have achieved:

There are no statutory criteria for this type of voluntary interest

arbitration. However, the accepted principles upon which interest

arbitration customarily proceeds are not dissimilar to those used for

Compulsory Arbitration Boards under s. 101 of the Labour Relations Act,

which I have considered in deciding this matter. Interest arbitration

customarily seeks to replicate the settlement the parties would have

achieved, had they been able to do so, through free collective

bargaining. An often cited and concise summary of the replication

principle provides:

... the task of an interest arbitrator is to simulate or attempt to

replicate what might have been agreed to by the parties in a free

collective bargaining environment where there may be the threat and

the resort to a work stoppage in an effort to obtain demands ... and

arbitrator’s notions of social justice or fairness are not to be

substituted for market and economic realities.

Re Board of School Trustees, School District 1 (Fernie) and Fernie

District Teachers’ Association (1982), 8 L.A.C. (3d) 157 (Dorsey) at

page 159

Interest arbitration is not a scientific process. There is no magic formula.

A party advancing a particular position carries the onus of presenting

cogent evidence to support that position. This does not equate to an

issue by issue approach where benefits are awarded because they seem

individually attractive and well supported. Collective bargaining involves

choices between desirable benefits, and agreements are settled on a

package basis. As Ontario Chief Justice Winkler has noted:

... we should have regard to the total compensation package rather

than viewing each of its elements in isolation. We also accept that in

collective bargaining it is legitimate for parties to make choices as to

how total compensation is to be allocated in terms of salary, benefits

and other forms of compensatory remuneration.

University of Toronto and University of Toronto Faculty Assn. (2006)

L.A.C. (4th) 193 (Winkler)

24

A very important guide in replicating the results of free collective

bargaining comes from the settlements negotiated by similarly placed

parties for a similar timeframe and in a similar industry. Comparability

and replication are related but distinct processes. As this Chair has said:

... interest arbitrators should apply the replication principle, using

agreements entered into by others as a key indicator of what these

parties might have ultimately accepted in a free collective bargaining

situation. While replication is not the same as comparability, the latter

is the best guide available in assessing the former. Arbitrator Picher

summarized the comparability approach as follows:

... the exercise becomes primarily comparative. It is reasonable

to assume that the parties would have made a collective

agreement generally comparable to others in the same industry

and geographic area. A first point of reference, therefore, is the

collective agreement which have been freely negotiated

between similarly situated Union and employers within the

same industry and within the same or similar locations.

Crane Canada Inc. and Teamsters Local Union 419, unreported

decision, September 9, 1988 (Michel Picher) at p. 9

What is fair and reasonable overall is itself a function of the economic

and social climate as much as it is a weighing, in isolation, of the merits

of individual proposals.

Northern Alberta Institute of Technology v. Alberta Union of Provincial

Employees [2009] C.L.B. 1756

[98] Arbitrator Smith in Carewest v AUPE, 2013 CanLII 66967, similarly followed

Justice Winkler’s commentary in University of Toronto which Arbitrator Sims referred to

above. In applying the replication principle, not only must “breakthrough” provisions be

considered with care as these are usually achieved only through years of bargaining,

arbitrators must look at the totality of the proposals presented. At page 3, Arbitrator

Smith states:

In applying the replication principle, based as it is upon a consideration of

what the parties would have negotiated in a free collective bargaining

process, arbitrators consider with care those provisions proposed by one

or the other of the parties which might be described as “breakthrough”

provisions.

25

Additionally, arbitrators have cautioned that it is necessary to examine

the effect and implications of the totality of the proposals presented.

Viewing each element in isolation without a consideration of the whole of

the proposal fails to recognize the collective bargaining involves a series

of compromises and trade-offs to achieve an overall settlement that both

parties can accept. No party to such a process does or can expect to

achieve all of which is sought.

[99] While agreeing that “breakthrough” provisions should be considered with care,

Arbitrator Casey in Rocky Ridge noted that the object for first agreement arbitrators is to

fashion a collective agreement, the terms of which will foster a relationship of enhanced

trust between the parties. While arbitrators should be cautious of giving “breakthrough”

provisions, the agreements crafted should also be sufficiently generous to cause

employers to realize its in their best interests to negotiate a fair deal directly with the

union:

[46] First contract arbitrators have recognized their role as facilitating the

policy objective of a workable first collective agreement without

undermining the process of collective bargaining. The object is to fashion

a collective agreement whose terms will as much as possible foster a

relationship of enhanced trust between the employer and union while

giving the union an opportunity to demonstrate to the employees and to

management the viability of collective bargaining as the basis for positive

employment relationships in the future. First collective agreement

arbitrators are cautioned against making overly generous awards rich in

“breakthrough” provisions usually achieved only through years of

bargaining since this would encourage resort to first agreement

arbitration as opposed to settling disputes through mediation. On the

other hand, first agreements should be seen as sufficiently generous to

cause employers to realize that it may be in their interests to negotiate a

deal directly with the union: Teamsters Local Union 419 and Crane

Canada Inc. (1988) CLLC 16, 017 (Abella) as quoted in Yarrow Lodge

Ltd (1993) 94 CLLC para 16, 047 (Lanyon) at p. 25 of 32.

[100]

Based on a review of the principles set out in the above jurisprudence, we

summarize the guiding principles as follows:

1. Interest Arbitration should attempt to replicate the agreement that could have

been in place at the point in time when, but for the break-down in collective

bargaining, conventional bargaining would have produced a new collective

agreement.

26

2. Interest Arbitration should apply objective criteria, such as the comparable terms

and conditions paid to similar employees performing similar work.

3. First agreement contracts should not create windfalls for either party. Arbitrators

should be cautious of giving “breakthrough” provisions. As found in Yarrow

Lodge, new or innovative clauses ought to be left to subsequent collective

agreements when they can be bargained by the parties themselves. Similarly,

first collective agreements should neither be status quo or industry standard

agreements except in rare circumstances.

4. Conversely, just because it is a first agreement contract, bargaining does not

justify proposals for less than what exists in a spectrum or range of terms and

conditions that similarly placed unions and employers would negotiate in similar

locations and industries. Rather, the arbitrator will recognize and build on any

comparators already identified by the parties as being relevant and appropriate.

5. While arbitrators should be cautious of giving “breakthrough” provisions, the

agreements crafted should also be sufficiently generous to cause employers to

realize its in their best interests to negotiate a fair deal directly with the union

6. Arbitrators should be equally concerned with what is “fair and reasonable in the

circumstances”. This requires the Arbitrator to objectively assess what should be

appropriately included in a first contract. It must be in line with the economic

realities of the employer, as presented by the parties, and sufficiently in line with

what would be reasonably attractive to employees in order to “foster the process

of collective bargaining”.¹⁴Thus, the financial state of the employer is very

important to any imposed settlement. However, it is clear that no judgment

concerning the financial viability of the employer can be made or considered

unless such evidence is placed before the arbitrator. As held in Yarrow Lodge at

para 171:

… no imposed first agreement should in any way place an employer

in jeopardy of its business surviving. That, as a matter of public

policy, is incorporated within first contract arbitration; it is also a

matter of common sense to every employee, union and employer. An

employer who relies on this criteria, and can demonstrate to an

arbitrator’s satisfaction, that the position it is taking in bargaining is

consistent with its available financial resources, is entitled to have its

position given significant weight. Conversely, an employer who

attempts to rely on this factor, but refuses to reveal evidence that

would support its position, or gives insufficient evidence or perhaps

¹⁴Yarrow Lodge at para 149 citing Teamsters Union Local 419 v. Crane Canada Inc., (1988) CLLC ¶

16,017

27

misrepresents its position, will have little or no weight assigned to this

factor or its position.

7. There must be internal consistency and equity amongst employees.

8. There should be “significant deference due to the enhanced mediator” and

recommendations as per the enhanced mediation process. And, that the

effectiveness of mediation would be fundamentally frustrated if recommendations

were simply seen as an interim step on the way to arbitration.

9. Arbitration should not be a forum to take another “kick at the can” and try to

renegotiate any recommendations set out in mediation or via the enhanced

mediation process. It should reinforce the mediators’ recommendations and while

not required to simply confirm a mediator’s recommendations, careful attention

and due consideration must be used when choosing not to give deference to the

mediators’ recommendations.

10.If there is new and relevant information that one party asserts may be used to

alter the recommendations provided by the mediator, there is an onus on that

party to disclose their full position, including relevant and detailed information

supporting the change. As per Silver City Galvanizing and Christian Labour

Association of Canada, Local No. 68, at para 23 as referred to in Elbow Grease

paras 52 and 53, “there is a very high onus on a party that wishes to overturn a

mediator’s recommendations…”

XII.

LEVEL OF DEFERENCE OWED TO ENHANCED MEDIATOR

[101] As identified above, there are two first contract arbitration decisions in Alberta

under Division 14.1 of the Code that we are aware of which have considered the issue

of deference owed by a first contract arbitration panel to the recommendations of an

enhanced mediator: Elbow Grease and Rocky Ridge. The two decisions reached

somewhat different conclusions with respect to deference. Because of the difference in

approaches, we examine both cases in some detail. While not necessarily a significant

difference in approach, we adopt, with some amendments, the level of deference found

by the panel in the Rocky Ridge decision.

[102] Both first contract arbitration decisions first quote from the Alberta Labour

Relations Board decision in AUPE v. CBI Health (AB) Limited Partnership, 2018 CANLII

9001 (“CBI v. AUPE”) regarding the Labour Relations Board’s review of the enhanced

mediator’s powers under section 92.2 of the Code:

[37] The path outlined above is not simply a “re-do” of mediation that is

available under section 65 of the Code. The mediator is provided with

enhanced powers to recommend contract terms which may or may not

28

be accepted by the Board or an arbitrator. It can be expected, however,

that arbitrators and the Board will benefit from the mediator's familiarity

with the dispute and his or her expert advice with respect to identifying

fair and equitable contract provisions to resolve the first contract dispute.

[103] The arbitration panel in Elbow Grease begins its review of the deference to be

given the enhanced mediator by noting the significance the BCLRB in Yarrow Lodge

placed on mediation in concluding a first agreement. As with CBI Health noted above,

the panel begins this analysis also starting at para 37:

[37] Yarrow Lodge further addresses the importance of mediation in the

process for concluding a first agreement. Where a mediator provides

recommended terms of settlement, these are to have a significant

statutory role. The recommendations are not to be seen as simply a "floor

or ceiling for negotiating up or down", and there should not be "great

discrepancies" between the recommended terms and what takes place at

arbitration. The policy purpose of this is to ensure the parties have taken

reasonable and realistic positions at mediation in the effort to conclude

an agreement without the necessity of resorting to arbitration, and is

consistent with the "principle that collective bargaining itself ought to be

the vehicle for settlement of first contract disputes."

[38] Further, the mediator's recommendations should be based upon the

same principles or factors for consideration that will be employed by

arbitrators, and where one party accepts the recommendations, this

moves the bargaining close to replicating what would have been the

settlement of issues, had the parties concluded the agreement

themselves. The mediator is seen to be in the best position to assist the

parties and understand the issues due to the nature of their discussions

during the mediation process. Further, they are in the best position to

appreciate the compromise involved in the full package of exchanges

necessary to achieve a collective agreement.

[104] After setting out the Yarrow Lodge factors, both Elbow Grease and Rocky Ridge

review the BCLRB decision in Hudson’s Bay Company, [1995] BCLRBD No. 296

(“Hudson’s Bay”), which is noted as refining the Yarrow Lodge factors. Starting at

paragraph 46, Arbitrator Norrie in Elbow Grease notes that Hudson’s Bay stands for the

proposition that the mediator’s recommendations should receive a very high level of

deference as the mediator’s recommendations encompass an entire package including

compromises and trade-offs. Failing to give a high level of deference would

fundamentally frustrate the effectiveness of mediation:

[46] The Hudson’s Bay decision refined the Yarrow Lodge policy and

explained the relationship between the recommendations of the mediator

appointed under the first contract provisions and first contract arbitration.

The case stood for the premise that the effectiveness of mediation would

29

be "fundamentally frustrated" if recommendations were simply seen as

an interim step on the way to arbitration.

[47] Hudson’s Bay at paragraph 20 emphasizes that the deference due to

the mediator's recommendations is critical in that to do otherwise would

undermine the process by ensuring that parties would not typically put

their best position forward confident that they had another "kick at the

can" at arbitration. This means that arbitrators must seriously consider

the impact if they were to routinely change the substantive

recommendations made by mediators.

…

[50] Hudson’s Bay decision made it clear that the mediator's

recommendations represent an entire package and encompass

compromises, trade-offs and exchanges that have been made

throughout the bargaining and mediation process. This balance would be

upended if one party was allowed to "cherry pick" certain parts that it

objects to or accepts.

[51] Further, when one party has accepted the recommendations, then

they would be effectively penalized if the other side were allowed to

relitigate specific terms to their benefit. This would also frustrate the

process as neither side would agree to the recommendations due to the

risk of "losing ground" on what was already a compromise from their

ingoing proposals.

[105] At paragraph 48, the arbitration panel in Elbow Grease also cited with approval

Arbitrator Hall’s decision of Northland Ice Gel Inc. v. Industrial Wood and Allied Workers

of Canada, Local 2171, [2000] BCCAAA No. 99 (Hall) (“Northland Ice Gel’) which

applied Hudson’s Bay and noted the following key factors to consider when determining

whether to alter or amend the recommended terms:

21. An interest arbitrator is not required to 'rubber stamp' a mediator's

recommendations; however, they must be given careful consideration and

interference will only be justified where:

1. the decision is inconsistent with the principles expressed or

implied in the Code and in particular the policy established in Yarrow

Lodge;

2. there is a clear error or mistake of fact in the recommendation; and

3. new circumstances have arisen since the issuance of the

mediator's recommendations, and they have had a material impact

on one of the parties.

30

22. The result of the (Hudson’s Bay) decision is that Section 55

arbitrators must give ‘considerable deference’ to a mediator’s

recommendations.

[106] Based on the review of these B.C. decisions, the arbitration panel in Elbow

Grease drew the following key conclusions regarding the deference owed by first

contract arbitration panels to the recommendations of a mediator:

[55] … In the event that it is clear that information was presented to the

mediator, that it was clearly understood, that there was no mistake or

misapprehension, and there were no material changes in circumstances,

then regardless of whether one would have made a different decision

there are no grounds for interference. This ensures that the arbitrator is

not merely “rubber stamping” the recommendations by assuming the

mediator got it right and yet ensuring that the deference due to the

mediator is respected.

[56] While neither party provided case law to argue the appropriate

standard of review on first contract arbitration as being equivalent to the

reconsideration of Labour Board decisions, the review of arbitration

decisions or judicial review, there was disagreement amongst the Panel

as to the standard to be applied. The majority was of the view that the

threshold for reconsideration of a Board decision, the review of an

arbitration decision, or judicial review, is a higher standard than

contemplated by first contract arbitration. As has been noted in this

decision this may be a first case for Alberta; however, we have relied

heavily on the jurisprudence, which clearly lays out the deference to be

applied to a mediator’s recommendations in first contract arbitration. Of

particular note Northland Gel, supra, clearly states that there is no

requirement to "rubber stamp" the recommendations, and further one of

the key principles for interference in a mediator's recommendations is

that they are inconsistent with the expressed or implied principles in the

Code and in particular the policy established in Yarrow Lodge. This

establishes for the majority that there is a broader opportunity to review

the rationale and circumstances behind a mediator's recommendations

than the more limited grounds provided for in reconsideration and judicial

review decisions.

…

[62] Arbitration should not be used to take a second or third “kick at the

can” just because a party does not like the decision of an informed and

balanced mediator, or in this case two informed and balanced mediators.

…

[63] This is why the onus is on the party seeking to alter or vary the

terms of the recommendations to establish the criteria as laid out above.

31

It is not sufficient to simply assert that they did not like the

recommendations and want to relitigate them.

…

[65] The Employer on the other hand is seeking to have us reconsider

the Enhanced Mediator’s Recommendations. As identified, there is

deference owed to the recommendations and the party seeking to

overturn them has a high onus to justify the interference on one of the

three grounds set out earlier. The Enhanced Mediator used the

appropriate legal principles in his determination and therefore the

Employer will need to establish that there was an error in fact or

application of the principles or a material change to circumstances in

order for us to consider altering the recommendations.

[107] Elbow Grease thus adopted a very deferential approach to the weight given an

enhanced mediator’s report based on its review of the Yarrow Lodge and Hudson’s Bay

decisions emanating out of the province of British Columbia.

[108] Rocky Ridge comes to a different conclusion with the level of deference owed an

enhanced mediator.

[109] The beginning of the difference in the analysis starts with a review of the

employer’s argument before the panel in Rocky Ridge. Specifically, the employer’s

arguments highlight the difference between the B.C. and Alberta legislation and the

impact that has on when, and in what circumstances, a mediator chooses to issue

recommendations for a first collective agreement. Arbitrator Casey writes:

[61] The Employer argues that the British Columbia jurisprudence is

based on a very different legislative structure, and as a result should not

be followed in Alberta. The Employer notes that in British Columbia

mediators are statutorily required to recommend the method by which a

first contract dispute is resolved. A mediator in BC may recommend

terms of settlement or may choose not to. Terms of settlement are issued

only where the nature of the dispute warrants it and the parties have

made sufficient disclosure to permit recommendations that have a

reasonable likelihood of acceptance. The Employer asserts that as a

result mediators rarely recommend terms of settlement in British

Columbia. In cases where a mediator chooses to recommend terms for a

first collective agreement, those recommendations will capture where a

reasonable settlement lies.

[62] By contrast, in the current case the Employer notes that the

Mediator was directed by the Labour Relations Board to write a report

with recommendations. As a result, the Employer argues, unlike in British

Columbia this Arbitration Board has no basis to assume that the

32

Mediator's recommended terms of settlement capture where a

reasonable settlement may lie between the parties.

[63] The Employer also notes that the Alberta Labour Relations Board

has established a two-step process under Division 14.1. It would be

redundant if the use of enhanced mediation would in substance

transform the Arbitration Board into a type of review panel.

[110] The panel’s analysis in Rocky Ridge as to what deference to give the enhanced

mediator’s report starts at paragraph 65. First, the Rocky Ridge panel notes it does not

agree with the employer before it that the BCLRB’s decisions in Yarrow Lodge and

Hudson’s Bay should be given little weight. Rather, the panel in Rocky Ridge agreed

with the conclusions in these decisions that both the mediator and arbitration boards

should have a similar focus: recommending, and then ordering “the terms that might

lead to a settlement are those that are fair and reasonable to both parties taking into

account all the circumstances”. (Para 66). Given an enhanced mediator and arbitration

board are starting with the same focus – as per the legislation – this means parties do

not come into the arbitration process with a clean slate:

[66] … The Employer describes the responsibilities of our Arbitration

Board as resolving “the outstanding terms after a consideration of what is

fair and reasonable in light of the parties’ respective proposals, the

agreements of similarly situated parties, and the prevailing economic and

labour market data available at the time of bargaining.” This was also the

focus of the responsibility of the Mediator in our case. …

[67] We would not expect that the intent of the legislative scheme is to

have the Arbitration Board simply replicate in a slightly more formal

manner the same process used in enhanced mediation without paying

regard to the results of the enhanced mediation process.

[68] In considering the relationship between the recommendations in

enhanced mediation and in first collective agreement arbitration, we do

not consider that it is appropriate to give no weight to the Mediator's

Recommendation and start with a completely clean slate. As noted by

the Alberta Labour Relations Board, it can be expected "... that

arbitrators and the Board will benefit from the mediator's familiarity with

the dispute and his or her expert advice with respect to identifying fair

and equitable contract provisions to resolve the first contract dispute":

AUPE v. CBI (supra).at para. 37. …

[111] However, in recognizing arbitration does not provide a clean slate for the parties

to argue over the terms and conditions of the collective agreement, the arbitration panel

in Rocky Ridge also disagrees with the “extremely deferential approach” given by the

BCLRB to mediator’s recommendations in British Columbia. The Alberta legislative

33

scheme requires that a first contract arbitration panel independently assess what it

considers fair and reasonable to both parties:

[69] On the other hand, I view our role as interest arbitrators to be

much more robust than the extremely deferential approach urged on us

by the Union. The Union argues that the Mediator's recommendations

are imbued with an almost "irrefragable presumption of correctness", and

the Arbitration Board can only change the recommendations in rare and

extreme cases. We can't fulfill our statutory duties to settle the

outstanding terms and conditions on a basis we consider fair and

reasonable to both parties if we treat the Mediator's recommendations as

essentially a straightiacket. In BC the circumstances in which an interest

arbitration board can depart from the recommendations of a mediator are

extremely limited, as follows:

1. the decision is inconsistent with the principles expressed or

implied in the Code; and in particular the policy established in Yarrow

Lodge;

2. there is clear error or mistake of fact in the recommendations; and

3. new circumstances have arisen since the issuance of the

mediator’s recommendations, and they have had a material impact

on one of the parties.

Hudson’s Bay (supra) at para 16

[70] Certainly we would consider the establishment of one or more of

these three criteria to provide justification for an interest arbitration board

to deviate from the recommendations of the mediator. However, we do

not consider that the legislative scheme places restrictions on us to only

deviate from the recommendations in those circumstances. As noted by

the Employer, under the process in Division 14.1 the hearing before the

Arbitration Board is not an appeal or a review of the Mediator's

recommendation. It is a stand-alone process albeit a process that needs

to take into account the processes that went before it.

[71] But neither do we adopt the position of the Employer that the

Arbitration Board should make its own assessment uninfluenced by the

Mediator's recommendations. We do not consider that interest

arbitration, following enhanced mediation, is intended to provide the

parties with a second "kick at the can" without any consideration of the

outcome of the enhanced mediation process. Treating the Mediator’s

recommendation as significantly persuasive will increase the leverage of

the mediation process forcing the parties to compromise and conclude

their own collective agreements. If parties know that the Mediator’s

recommendations will be treated as significantly influential the parties will

be forced to move to more reasonable and realistic positions in an

attempt to persuade the mediator of the reasonableness of their

34

positions. (See the analysis of the BC Labour Relations Board at para 35

in Hudson Bay as quoted in the BC Supreme Court decision at para. 16).

[112] Based on the conclusions in Rocky Ridge, Arbitrator Casey summarized the

relationship between the mediators’ recommendations in the enhanced mediation

process, and the first contract arbitration process, as follows at para 72:

1. First collective agreement interest arbitration following enhanced

mediation is not intended to provide the parties with a second "kick at the

can” without any consideration of the outcome of the enhanced mediation

process.

2. While the role of the Arbitration Board is not to simply act as a "rubber

stamp" of the Mediator's recommendation, the parties can expect that

recommendations by the Mediator will be persuasive to the Arbitration

Board. As a result, the parties should put their best case forward during

enhanced mediation to either achieve a resolution or attempt to convince

the mediator that their proposals are fair and reasonable to both parties

and should be adopted by the mediator.

3. A party attempting to convince an Arbitration Board not to adopt

recommendations by the Mediator is expected to present compelling

reasons to depart from the recommendations.

4. Ultimately the Arbitration Board retains the responsibility to settle the

outstanding items on a basis it considers fair and reasonable to both

parties.

5. The approach to considering the Mediator's recommendations as

persuasive is premised on the assumption that the Arbitration Board

considers the enhanced mediation process to have been careful,

comprehensive, and fair with a report from the Mediator which on an

overall basis is balanced and well-reasoned. (Emphasis added).

[113] As with the arbitration panel in Rocky Ridge we are of the opinion that while an

enhanced mediator’s recommendations must receive deference, we are likewise of the

opinion that we are able to deviate from the recommendations of the mediator for

reasons other than the establishment of one or more of the three criteria set out by the

BCLRB in Hudson’s Bay. Our legislation is different than that relied on by the BCLRB in

both Yarrow Lodge and Hudson’s Bay. We agree with Arbitrator Casey that while

viewing the recommendations of the enhanced mediator as persuasive, our legislation

requires us to exercise our discretion and examine and determine what is fair and

reasonable in the circumstances to both parties. We believe this is more of a balancing

act than that set out by the arbitration panel in the Elbow Grease decision.

35

[114] SHS submits that while we should consider the recommendations of the mediator

as persuasive, and while there should be a presumption that the recommendations by

the Enhanced Mediator are the correct outcome and should be followed by this

arbitration panel, the presumption is a rebuttable one. Thus, argues SHS, the approach

to considering the Mediator's recommendations as “persuasive” means that the

recommendations are in the same category as a “rebuttable presumption” in law.

[115] In our opinion, the balancing act in the level of deference provided to an

enhanced mediator’s recommendations leans more heavily in favour of the enhanced

mediator than that actually employed by SHS in its submissions. In its written

submissions, after making its submissions to follow Rocky Ridge, SHS then applies its

“rebuttable presumption” test to the issues in dispute, arguing that in each and every

situation, the Enhanced Mediator’s recommendation is rebuttable and, therefore, should

be amended or deleted as the case may be. However, in arguing a “rebuttable

presumption” exists, all SHS does is take a piece of evidence which it says speaks

against the Mediator’s Recommendation and says this proves a rebuttable presumption

exists and the Enhanced Mediator’s Recommendation cannot stand.

[116] We disagree that the test set out in Rocky Ridge is one where the mediator’s

recommendations can be set aside merely because they are arguable or that a

“rebuttable presumption” exists, as used by SHS. Merely arguing a contrary position or

pointing out evidence that may suggest a different outcome does not overcome the

deference to be given the enhanced mediator’s recommendations. To overcome the

deference given an enhanced mediator, first, the position must be supported by

evidence and second, the evidence must be more than arguable; it must have

substance behind it making it significantly persuasive. The argument and evidence in

support of a change from the recommendation must be more persuasive than the

enhanced mediator’s recommendation. This requires a higher level of deference than

merely that the evidence against the enhanced mediator’s recommendation is arguable.

[117] We are also of the opinion an enhanced mediator’s recommendations can, like

virtually everything in the labour relations world, be amended or altered by consent.

While this may fit into the “more persuasive” category noted above, where the parties

identify errors, typos, or agree as between themselves that a change in

recommendations is appropriate, it only makes labour relations sense to allow for that

change without analysis of the strengths or weaknesses of the arguments. Thus, like

here, where the parties did not engage in good faith bargaining and the Enhanced

Mediator was, in essence, left on her own without the full assistance and support of both

of the parties, where the parties can now agree with changes to the recommendations

after mediation has ended, a first agreement arbitration board should not interfere with

these newly agreed upon items.

36

[118] We now turn our attention to applying these above principles to the actual issues

in dispute.

XIII. ITEMS REMAINING IN DISPUTE

[119] Prior to the start of the arbitration hearing, the Employer re-examined its position

and accepted several of the Mediator’s recommendations. It also agreed with several

other recommendations both immediately at the start of the arbitration hearing as well

as in its final written argument. The parties also both jointly agreed to some others and

debated the wording of others during the course of the arbitration.

[120] The list of agreed upon items includes:

• Article 11 - Probation Period

• Article 13 - Overtime

• Article 15 - Weekend Premium or Night Shift Premium

• Article 17 - Layoff and Recall

• Article 19 - Named Holidays

• Article 20 - Annual Vacations

• Article 22 - Job Classifications

• Article 25 - Discipline and Dismissal

• Article 26 - Resignation/Termination

• Article 29 - Uniform and Clothing Issue

• Article 30 - Duty-Incurred Expenses

• Article 31 - Temporary Assignments and Responsibility Pay

• Article 35 - Over/Under Payments

• Article 36 - Contracting Out

• Article 38 - Court Appearance

• Article 40 - Evaluation and Personnel Files

• Article 41 - Workplace, Health, Safety and Wellness

• Article 42 - Protective Clothing

• Article 44 - Critical Incident Stress Management

• Letter of Understanding (“LOU") #4 - Alternative Dispute Resolution

Process

[121] While consenting to Article 25 prior to the start of the arbitration, upon the start of

the actual arbitration itself, the Employer sought to re-argue the inclusion of Article

25.10 arguing that disciplinary matters should remain on an employee’s personnel file

and not be expunged after two years.

[122] As part of the Employer’s closing submissions (including its Reply of February

4, 2020), and after both making submissions and hearing the arguments of HSAA, SHS

37

continued to narrow the issues in dispute by agreeing with the following provisions

recommended by the Mediator or with the submissions of HSAA:

• Article 2.15 – Definition of Temporary Employee. The parties agreed that a

temporary employee is one who is hired on a temporary basis for full-time hours

for a maximum of 12 months.

• Article 8 – Grievance Procedure (regarding time lines)

• Article 9 – Arbitration (also regarding time lines)

• Article 16 – Seniority (regarding clarity over the employer’s ability to hire

outside the bargaining unit)

• Article 18 – Promotions, Vacancies and Transfers (regarding clarity over

the employer’s ability to hire outside the bargaining unit, and clarity over

pay raises on transfer under Article 18.08)

• Article 20.07(b) – Education Leave

• Article 27 – Salaries (all of SHS’s concerns with respect to salary

increases relate to the Salary Appendix and not Article 27 regarding

Salaries)

• Article 33 – Benefits (regarding the introduction of a new flexible spending

Account – the amount of the flexible spending account under LOU #5 remains an

issue in dispute)

[123] While the now agreed upon list is fairly extensive, and the Arbitration Board

acknowledges and is grateful for the Employer’s concessions, they came very late in the

day. Most of these now agreed upon Articles are, based on our industry knowledge and

experience, in fact, standard and non-contentious and appear in multiple collective

agreements, both with HSAA as well as other employers and unions. In the opinion of

the majority of this Arbitration Board, these provisions could have, and should have, at

the very least, been discussed at the bargaining table. They should have been agreed

to long before arbitration.

[124] We are left with the impression that the only reason the Employer is now

agreeing to them is the knowledge that, because of their standard nature, this

Arbitration Board would likely have imposed them in any event. It appears that the

Employer only consented to the inclusion of these multiple provisions so late in the

process so as to appear reasonable and, thereby, attempt to bolster their other

arguments: it is a calculated strategy. Indeed, as part of its arguments before this

Arbitration Board, the Employer argues their agreement to include these provisions

proves they are not engaging in “cherry picking” or seeking “another kick at the can”

which are considerations enhanced arbitration boards should consider in its

deliberations. We address this more fulsomely below.

[125] The collective bargaining issues remaining in dispute are:

38

• Article 4.05 – Recognition (HSAA representatives on Siksika Nation lands);

• Articles 12.01(a) and 12.06(b) – Hours of Work (schedule and shift change

notice);

• Article 21.08(a) – Bereavement Leave;

• Article 25.10 – Discipline Letters;

• Salary Appendix including increments and retroactivity;

• Article 28 – Recognition of Previous Experience;

• LOU #3 – Recognition of Previous Experience for Current Employees (regarding

salary amounts, retroactivity and recognition of current employee experience with

prior employers other than SHS, but not the recommendation of a pay grid

structure or recognition of current employee service with SHS, which are agreed

to by SHS); and

• LOU #5 – Flexible Spending Account.

[126] Some errors in drafting were also identified, as well as the incorrect reference to

some sub-paragraphs. The drafting errors identified include:

• Article 12.06(c) (“fourteen (7)’’);

• Article 17.01(a)(ii) (reference to “twenty-eight (28) calendar days” should be

“fourteen (14) calendar days”);

• Article 25.07 incorrectly references other sub-paragraphs within Article 25. The

parties agree that Article 25.04, 25.05, and 25.06 describe procedures and

should be substituted in place of 25.02 and 25.03. The Employer disagrees that

Article 25.10 should be removed from the list included in Article 25.07;

• Article 27.05 – in the Mediator’s Recommendations it states that payroll schedule

is on a bi-monthly basis for all employees. This should read “Payroll schedule is

on a bi-weekly basis for all employees”.

[127] The parties agreed that a couple of these Articles (Articles 17.01 and 27.05)

could be changed by consent. While both acknowledged and agreed the other noted

Articles contained errors, the parties could not agree on how to deal with them. We

address all below.

XIV. ANALYSIS

[128] We review the remaining items in dispute in turn by reviewing the

recommendation of the Mediator¹⁵together with her rationale¹⁶for making the

recommendation (when appropriate), followed by the positions of the parties in the

arbitration before applying the principles above in arriving at our decision on each.

¹⁵From the Enhanced Mediator’s Report by Mediator Deborah Howes, February 2, 2021

¹⁶From the Enhanced Mediator’s Report Explanations for Recommendations document by Mediator

Deborah Howes, February 2, 2021

39

A.

CHANGES BY CONSENT

[129] We first deal with the matters both parties acknowledge are drafting errors in the

Enhanced Mediator’s Report which can be changed by consent.

[130] With the consent of the parties noted, we hereby find and order the changes to

the following Articles without further comment:

• Article 17.01(a)(ii) is hereby amended as follows: Reference to “twenty-eight (28)

calendar days” is deleted and “fourteen (14) calendar days” is substituted.

• Article 27.05 – in the Mediator’s Recommendations it states that payroll schedule

is on a bi-monthly basis for all employees. This is hereby amended to read

“Payroll schedule is on a bi-weekly basis for all employees”.

[131] The parties also indicated the payroll schedule is referred to elsewhere in the

recommendations (specifically Article 17) but our review could not find another

reference. However, for certainty, if it is mentioned elsewhere in the recommendations

that employees are paid on a bi-monthly basis, we find this to be in error and the

reference should be corrected. Rather, as per SHS’s standard practice, all employees

are paid on a bi-weekly basis and this should be reflected in the Collective Agreement.

B.

ARTICLE 4.05 – RECOGNITION

[132] Summary of dispute: The first item we address is wording enabling a Union

representative to come onto Siksika Nation’s lands.

Mediator’s Recommendation:

4.05 Any duly accredited Officer employed by the Union may be permitted on the

Employers premises for the purpose of transacting Union business provided prior

permission to do so is granted by the Employer.

Mediator’s Rationale:

The Employer’s concern here was about a Union representative visiting

the site. During the pandemic, such visits are discouraged, and most

meetings are conducted virtually. In addition, the Employer wants to

ensure visits by non-employee Union representatives comply with any

requirements of Siksika Nation. The Employer agreed to investigate the

specific protocols and procedures and get back to me but, similar to

other information requests, later said it was unable to because of its

focus on combatting the pandemic.

40

The BTDHI UNA Agreement (Blood Tribe Department of Health Inc and

United Nurses of Alberta) and the BTDHI Teamsters Agreement (Blood

Tribe Department of Health Inc. and Teamsters, Local Union 987) both

contain a provision permitting the union business agents to access the

worksite with reasonable notice if the business agent has obtained a

permit from the Blood Tribe to conduct business on its lands.

In response, the Union wants to ensure it can access the worksite if

required in a safe and culturally respectful way. It relies on the

Employer to communicate with Siksika Nation to identify and facilitate

access to Siksika Nation so the parties can administer the agreement.

I am satisfied the parties can work out the specific protocols to access

the worksite if required and the language proposed by the Union is

sufficiently broad to incorporate virtual and in person meetings at the

work site.

I recommend the language in the Union’s proposal. ¹⁷

Positions of the Parties

[133] As indicated in the Mediator’s Rationale, the Employer’s concern relates to its

lack of authority to allow non-employee representatives of HSAA to attend the worksite

on Siksika Nation’s territory. The Employer indicated it is not within its authority to grant

permission for HSAA representatives who are not employees of the bargaining unit, to

be present on Siksika Nation territory. Only the Chief and Counsel of Siksika Nation

have the power to do that. Based on the foregoing, SHS submits that Article 4.05 of the

Collective Agreement does not reflect the reality of this situation and, for that reason, is

rebuttable and not persuasive or, with due respect to the Mediator, reasonable in the

circumstances.

[134] The Employer recommends changing the Article to require that the Employer

make “reasonable efforts” to obtain permits allowing Union representatives to come on

the Employer’s premises in order to conduct union business.

[135] HSAA submits that the onus to allow a representative from the Union on Siksika

Nation lands should rest with both the Employer and the Union. Therefore, HSAA is

willing to provide advance notice of the requirement to attend to meetings on Employer

premises. However, HSAA submits, that in order to conduct business and ensure that

the Employer is in compliance with the collective agreement provisions with respect to

investigations or discipline, as well as to ensure overall positive relationships with

¹⁷Names of parties to CollectiveAgreements added for context. Abbreviations of names defined earlier

(page 9) in Enhanced Mediators Recommendations Explanations

41

between the parties, the Employer should be expected to commit to ensuring a permit to

conduct business is secured between the parties, as needed.

Panel’s Decision on Article 4.05

[136] This Article is where the parties, both at arbitration and in their submissions, truly

tried to narrow the disagreement between them. Given their back-and-forth, we are

prepared to consider the provision in light of these discussions and without looking at

the deference to be given the Mediator’s recommendations.

[137] The approaches of both the Employer and the Union recognize that a Union

representative has the right to access the Employer’s premises for the purpose of

transacting Union business. The Employer suggests this can be done on reasonable

notice from the Union and that the Employer will make reasonable efforts to obtain a

permit to that effect.

[138] While we accept the Employer’s position that it does not have the authority to

issue the permit on its own as that is solely within the bailiwick of Chief and Council of

Siksika Nation, we are concerned with its suggestion to incorporate “reasonableness”

into this Article in relation to the Union’s ability to access their premises. As the findings

of the Labour Relations Board indicate, to date during bargaining, SHS has failed to act

reasonably and has engaged in bad faith bargaining and has adopted extreme

bargaining positions. The conduct engaged by SHS in this relationship has not been

reasonable.

[139] Notwithstanding the findings of the Labour Relations Board and the majority of

this panel’s concerns in relation to the Employer’s conduct and the likelihood of it

modifying its behaviour to act reasonably, the incorporation of “reasonableness” has

legal meaning and consequences if a party fails to make reasonable efforts. While

incorporating this concept into the Article may invite further litigation, it may also provide

an avenue for the parties to begin, at the very least, learning to work together in a

reasonable manner. For this reason, we are prepared to find in favour of the alternative

put forth by SHS. Therefore, we order that Article 4.05 shall read:

4.05 Any duly accredited Officer employed by the Union may be

permitted on the Employer’s premises for the purpose of

transacting Union business with reasonable notice to the

Employer, and the Employer will make all reasonable efforts to

obtain and provide a permit to the Union to do so, on a yearly

or case-by-case basis. Where the permit is provided annually, the

Employer will be solely responsible for making all reasonable

efforts to ensure that the permit is renewed and provided to the

Union no later than January 15 of each year.

42

C.

ARTICLE 12 – HOURS OF WORK

[140] Summary of dispute: While both parties agree the current shift schedule is

desirable and works well, the Employer seeks other options from a cost perspective.

Mediator’s Recommendation:

Hours of work shall consist of:

12.01 Regular Shift

(a) Operate under a four (4) platoon system on the basis of two (2) twenty-four

(24) hour shifts on duty, followed by six (6) days off (tour of duty).

(b) A shift shall consist of forty-eight (48) hours per shift.

Mediator’s Rationale:

The Union proposed a schedule and hours of work that currently exists.

The proposal captured the ability of employees to exchange shifts as it

currently exists. The language in the Union’s proposal is similar to that in

the Cold Lake Agreement. The Union did not propose to change the

schedule or hours of work.

…

The Employer told me that many years ago it had a different work

schedule, but the schedule contributed to its difficulty in hiring and

retaining employees. At some point the Employer consulted its

employees about the hours of work and with agreement of the

employees at that time, changed the schedule and hours of work to a two

on and six off schedule (2 on and 6 off) with an employee working two

24-hour periods. This schedule has been a contributing factor to

recruiting and retaining employees.

The Employer said it preferred to maintain the current schedule and

hours of work, although one area for it to potentially save costs in light of

the Union’s proposals for night and weekend premiums was to alter the

schedule or hours of work.

…

I recommend the Union’s proposal in 12.01 … about the current shift

schedule and hours of work and the employees’ ability to exchange shifts

because it mirrors the current practices.

43

Positions of the Parties

[141] SHS has two concerns regarding hours of work. In Article 12.01(a), SHS seeks

flexibility with respect to the current “2 on 6 off” shift schedule if required for financial

reasons. In Article 12.06(b), SHS’s concern relates to the minimum amount of notice of

a shift change required before employees receive 24 hours’ overtime pay. The

Mediator’s Explanation (at pages 15 and 16) indicates these issues were raised by SHS

at enhanced mediation.

[142] Both the Employer and Union agreed that attractive scheduling is one of the

reasons the Employer has been able to attract qualified employees, especially

employees living over an hour away in Calgary. But, the Employer argues, it needs

flexibility to change this Schedule in the face of cost increases resulting from the

recommended wage increases made by the Mediator.

[143] The Employer says the Mediator’s Report indicates that SHS raised this concern

at the enhanced mediation, but does not include any discussion as to why the Mediator

chose not to provide SHS with the discretion it was seeking to change the shift

schedule, where required for financial reasons. Based on the foregoing, SHS submits

that it is rebuttable and unpersuasive for Article 12.01(a) not to include some discretion

for SHS to amend the current “2 on 6 off” shift schedule where SHS determines this is

necessary for financial reasons, after providing reasonable notice to HSAA. According

to the Employer, “flexibility would potentially be helpful”.

[144] The Union pointed out that SHS presented no evidence which substantiated how

a possible change to the shift structure would reduce costs. The Employer neglected to

quantify what shift structure might be contemplated to reduce costs and what the

potential savings might be. The Union reiterated that both the Union and the Employer

during mediation and again at Arbitration found that the shift schedule is highly

desirable. It is one of the main reasons many employees choose to remain employed

with SHS. Additionally, the Arbitration Board heard that the Employer settled on this

particular schedule with these issues in mind, given the Employer found it difficult to

attract employees when operating under a less attractive shift schedule. The 48-hour

schedule is very attractive to employees who do not live on Siksika Nation. Therefore,

HSAA submits, the current shift schedule must be maintained until at least the next

round of bargaining as the parties will have an opportunity, at that time, to revisit the

shift schedule and discuss any concrete changes and associated options for scheduling

that may be in the best interest of the parties.

Panel’s Decision on Article 12.01(a) and (b) – Hours of Work

[145] As our outline of the law above indicates, the Mediator’s recommendations

should be given deference unless the party objecting presents evidence which is more

persuasive than that of the Mediator’s recommendation. Simply suggesting, without

44

evidence in support, that the Mediator’s recommendations are rebuttable and in error

because she failed to consider each and every position advanced by a party and that

flexibility is desirable, does not meet the test. We find no error in the Mediator’s

recommendations nor do we find the Employer’s submissions to be persuasive. It

presented no evidence whatsoever in support of its arguments.

[146] We find in favour of maintaining the Mediator’s recommendations in relation to

Article 12.01(a) and (b).

D.

ARTICLE 12.06(b) – SCHEDULE POSTING AND SCHEDULE CHANGES

[147] Summary of dispute: The Employer seeks to shorten the notice period to be

provided employees in the event of a shift change as it worries this will be a cost-item.

Mediator’s Recommendation:

12.06

Schedule Posting and Schedule Changes

(b) If the Employer changes a shift schedule after the schedule was posted, the

affected employees shall be provided with seven (7) days’ notice of the new

Schedule. In the event that an employee's schedule is changed in the new

shift schedule and he is not provided with seven (7) calendar days’ notice,

he shall be entitled to overtime for hours worked in the first 24-hour period.

Mediator’s Rationale:

In 12.06 the Union proposed a minimum of seven days’ notice of

changes to the shift schedule …

In 12.06(b) the Union sought overtime at 1.5X for short change notice

affecting days off. …

The Employer disputed the double overtime rate; it currently pays 1.5X

for overtime (see: individual contracts of employment). It also raised a

concern about the four (4) week posting requirement for the schedule

and the seven (7) day posting requirements for changes to the schedule.

The Employer’s current practice is to post the schedule up to two months

in advance. However, changes to the schedule can occur with minimal

notice because of attempting to accommodate employee leave or

vacation requests or sick leave notifications. The Policy Manual requires

employees to give at least four hours notice of an absence so the work

can be covered. The Employer did not raise concerns about the general

language in the Union’s proposal.

45

…

In 12.06(a) the Union’s proposal for posting the shift schedule is less

than the Employer’s current practice so I recommend the 4 weeks

proposed by the Union. In 12.06(a) I deleted the reference to a premium

that does not exist and modified the clause to provide overtime payment

for the first 24 hour shift only. I separated the initial posting of the

schedule from the provisions for posting changes to the schedule to

make the provisions clearer. I retained 12.06(b) dealing with changes

affecting days off and will recommend deleting the contradictory provision

in Article 13.02.

Positions of the Parties

[148] SHS argues, in view of its non-profit status and limited funding, it has serious

concerns regarding the financial implications of this provision. While the Mediator’s

Report indicates that SHS raised its concerns about the 7-day notice requirement for a

shift change at enhanced mediation, SHS notes that the Mediator provides no reason or

rationale as to she did not make the change advocated for in mediation.

[149] The Employer argues that at the arbitration hearing, Tom Littlechild gave

evidence that SHS recognizes last-minute shift changes can be a significant

inconvenience for employees, especially those commuting from Calgary, and that it

does everything it can to avoid these last-minute changes. However, he also gave

evidence that sometimes, due to circumstances beyond SHS’s control, including

employee absences for illness (including COVID or exposure to COVID) and other

reasons, it has no choice but to make a last-minute shift change. Based on the

foregoing, SHS submits that the reasonable resolution to this issue involves reducing

the minimum amount of notice of a shift change required before employees receive 24

hours’ overtime pay, from 7 days to 3 days. SHS further submits that this compromise is

more persuasive than the recommendation by the Mediator in Article 12.06(b), which

made no change to the 7-day notice requirement.

[150] HSAA submits the Employer provided its rationale to the Mediator during

enhanced mediation regarding the required notice to change shifts but the Mediator

declined to acquiesce to the Employer’s request.

[151] HSAA notes that a 14-day notice period was originally submitted as part of the

Union’s ingoing proposals as well as to its submissions to the Mediator. During the

discussions with the Mediator, the Union agreed to decrease the length of notice to

seven days. It is a deviation and less than standard wording from the language in the

comparator contracts. When combined with the ability to call in casuals, offer overtime

or additional shifts, as well as shift trades, the language leaves the Employer in a

46

position to manage its business. If the Employer has a last-minute emergent situation

that will not allow them to provide the affected employee the required 7-days notice, the

Employer is still able to ensure that they operate at full staffing, and employees are

entitled to appropriate compensation for the inconvenience.

Panel’s Decision on Article 12.06(b) – Schedule Posting and Schedule

Changes

[152] From a deference perspective, and while we accept the Enhanced Mediator did

not explain her rationale for the recommendation for Article 12.06(b) in a fulsome

manner focusing, instead, on other issues in the Article as a whole, SHS presented

insufficient evidence before us to overcome the position recommended by the

Enhanced Mediator. Other than submitting it needed a shorter period to deal with

employee absences for illness or leaves and the like, and that this shorter period of

three days is “more persuasive than the recommendation by the Mediator”, we received

only limited evidence at best to overcome the deference owed to the Enhanced

Mediator. The Mediator’s recommendation was already a compromise and change, and

a rather significant one at that from the standard language of comparable collective

agreements. The Union had already moved from14 days to seven days to

accommodate the Employer’s wishes and the Enhanced Mediator accepted this

compromise instead of the additional ask from the Employer.

[153] We find no reason to overturn the Enhanced Mediator’s recommendation with

respect to the Employer’s obligation surrounding the seven-day notice of schedule

changes as recommended by the Mediator in Article 12.06(b).

E.

ARTICLE 12.06(c) – SCHEDULE POSTING AND SCHEDULE CHANGES

[154] Summary of dispute: This Article involves a drafting error. The parties disagree

on which version is correct.

Mediator’s Recommendation

12.06(c) Unless otherwise agreed between the Employee and the Employer, unless an

employee is given at least fourteen (7) calendar days' notice of a change of scheduled

days off, he shall be paid at one and one half times (1.5X) his basic rate of pay for all

hours worked on such day(s) unless such change is at the employee's request.

(Emphasis added)

47

Positions of the Parties

[155] The parties agree that Article 12.06(c) contains a drafting error as the written

number of calendar days is different than the numerical days in parenthesis following

the written number. SHS believes the number in parenthesis is correct as it reflects the

number of days recommended by the Enhanced Mediator in 12.06(b). HSAA argues the

written number is correct and the number in parenthesis is incorrect.

Panel’s Decision on Article 12.06(c) – Schedule Posting and Schedule

Changes

[156] First, as indicated above, when we can identify and clarify apparent drafting

errors, we believe it is appropriate to clarify and change these errors without regard to

deference.

[157] With respect to which position to adopt, we are satisfied the correct number

should be the same as that provided for in Article 12.06(b) as it involves the number of

calendar days’ notice of a change of scheduled days off. Thus, and as we have found

that Article 12.06(b) requires that the Employer must provide the affected employees

with seven (7) days’ notice of the new Schedule, Article 12.06(c) must require the same

notice, failing which the Employer is obligated to pay overtime as set out. The Article

shall be amended to read:

12.06(c) Unless otherwise agreed between the Employee and the Employer,

unless an employee is given at least seven (7) calendar days' notice of a change

of scheduled days off, he shall be paid at one and one-half times (1.5X) his basic

rate of pay for all hours worked on such day(s) unless such change is at the

employee's request.

F.

ARTICLE 21.08(a)(i) – BEREAVEMENT LEAVE

[158] Summary of dispute: The parties do not agree on how bereavement leave is paid

under the current 2 on, 6 off shift schedule.

Mediator’s Recommendation:

21.08

Bereavement Leave

(a) Bereavement leave with pay of:

(i) seven (7) consecutive calendar days, without loss of pay, shall be granted in the

event of the death of a member of the employee's immediate family. Upon

request, the employee may be granted additional leave of absence without pay.

48

Immediate family of the employee is defined as spouse, parent, child, brother,

sister, fiancé, step-parent, stepchildren, step-brother, step-sister, mother-in-law,

father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, legal

guardian, grandparent, and grandchild. "Spouse" shall include common-law or

same sex relationship.

Positions of the Parties

[159] The Employer’s concern relates to the scope of bereavement leave suggesting

the Mediator’s recommendation is unclear regarding the extent to which these issues

were discussed at the enhanced mediation. It notes the Enhanced Mediator’s

recommendation is that employees are entitled to “bereavement leave with pay of seven

(7) calendar days”. The Employer is unclear how that can be applied under the current

“2 on, 6 off” shift schedule, and in particular whether the requirement of 7 calendar days

with pay could be interpreted to mean seven 24-hour pay days, which would impose a

very significant financial burden on SHS. The Employer seeks a reasonable and clear

amendment which would state that employees are entitled to one “tour of duty” off with

pay, which would cover the two days they are working.

[160] The Union submits the language is already clear as the proposed language

provides that leave of seven consecutive calendar days will be granted, “without loss of

pay”. As the employees work a “2 on, six off” schedule, they would be entitled to pay

only for the days that they would normally be scheduled to work.

Panel’s Decision on Article 21.08 – Bereavement Leave

[161] We concur with the Union. While the wording in the article could have been

clearer, we see no reason to change it. Article 21.08(a)(i) does not require payment of

seven days. Rather, it says an employee is entitled to be granted seven days off for

bereavement leave and, assuming they are scheduled to work within that time frame,

they shall not lose pay. Thus, if an employee is working a “2 on, 6 off” schedule, they

are entitled to pay only for the days they would normally be scheduled to work. We

make no changes to this Article.

G.

ARTICLE 25.10 – DISCIPLINE AND DISMISSAL

[162] Summary of dispute: The Employer believes discipline letters or other indications

of discipline should not be removed from an employee’s personnel file.

Mediator’s Recommendation:

25.10 An employee, who has been subject to disciplinary action shall, after one (1) two

(2) years from the date the disciplinary measure was initiated, request in writing that his

record be cleared of that disciplinary action. The Employer shall confirm in writing to the

employee that such action has been affected.

49

Mediator’s Rationale:

The Union proposed just cause for discipline and dismissal and

procedures and timelines for Employer actions. The proposal requires

the Employer to pay the employee (at applicable basic or overtime rates)

to attend meetings with the Employer.

Other HSAA agreements do not reveal a consistent standard here. The

Cold Lake Agreement is the only first contract agreement HSAA has in

this work, so I consider it to be the most applicable comparator. Cold

Lake has shorter time limits (10 working days) for the Employer to issue

written warnings but more time (5 working days) for the Employer to copy

the discipline letter to the Union and double the time (2 years) for an

employee to request their file be cleared. This Agreement also

compensates employees at their basic rate of pay for attending meetings

with the Employer.

The Employer did not have a lot of concerns here. The individual

contracts of employment capture the just cause standard for dismissal.

They are silent on the remaining matters in the Union’s proposal.

Section 4.3 of the Policy Manual addresses Progressive Discipline,

including the concept of “cause”, a detailed progressive discipline

program, an obligation for the Employer to investigate before discipline

and an obligation for the Employer to meet with the employee. It does

not address timelines or pay. Section 3.2.6 requires the Employer to

provide the employee a copy of any discipline and place it on the

employee’s personnel file.

I amend the proposal to reflect the timelines and pay rate in the Cold

Lake Agreement. I amend the Union’s proposal to two (2) years before

the employee can request their personnel filed be cleared. I also amend

the compensation for employees to attend investigatory or disciplinary

meetings to their basic rate of pay. I recommend the amended article.

Positions of the Parties

[163] SHS’s concern relates to disciplinary records being removed from personnel files

after two years under Article 25.10. Tom Littlechild testified this would affect SHS’ ability

to apply progressive discipline over time, should that be necessary. The Mediator’s

Report indicates that the Mediator considered section 4.3 of the SHS Policy Manual,

which contains “a detailed progressive discipline program” as well as HSAA’s proposal

in relation to how long an employee’s disciplinary record remains on an employee’s file

before the Mediator reached a compromise, extending the length of time an employee’s

disciplinary record remains on file from one to two years. SHS submits that while the

Mediator clearly sought to strike a compromise with respect to Article 25.10 of the

50

Collective Agreement, the resulting provision is rebuttable and not persuasive or, with

due respect to the Mediator, reasonable, for the reasons indicated above.

[164] HSAA submits that this was not included in the original list of outstanding items

presented prior to the Arbitration and, therefore, should not be included as a possible

outstanding item at this late stage.

[165] Even if the panel does consider it, argues HSAA, it is standard language and has

not created any concerns for other unionized employers that wish to engage in

progressive discipline. Two years is more than sufficient time to allow the employee to

improve and for the employer to take note of any concerns or issues that may arise

warranting further progressive discipline. Additionally, argues HSAA, with respect to the

progressive discipline model detailed within the Employer’s Policy Manual, the panel

heard from Mr. Littlechild that this manual is more of a “guide”, rather than a definitive

guiding document. The Mediator considered the policy, together with comparable

collective agreements, and chose to recommend that discipline letters remain on file for

two years. It was a considered compromise and there is no reason to disturb the

recommendation. The Union contends all the Employer is after is another “kick at the

can” here.

Panel’s Decision on Article 25.10 – removal of disciplinary letter

[166] We agree with all arguments advanced by the Union with respect to leaving the

Mediator’s recommendation as is with respect to retaining disciplinary letters on file for

two years.

[167] First, shortly before what was to be the original start of this Arbitration the end of

October 2021, the Employer’s then counsel indicated the Employer withdrew its concern

surrounding Article 25 and accepted the recommendations in the Enhanced Mediator’s

Report. It was only in his opening remarks to this Arbitration Board on January 3, 2022,

that the Employer’s new counsel indicated an issue remained with Article 25.10. The

Employer did not flag this as an issue before hearing and we received no indication

there was any discussion between the Employer and Union about this prior to the

hearing. To allow the Employer to add back in items which had already been agreed to,

without the consent of the Union, is, in essence, a form of receding horizon bargaining.

This Arbitration Board does not condone any form of receding horizon bargaining.

[168] Second, the only remarks we heard about Article 25.10 in testimony was a

comment from Tom Littlechild in examination-in-chief that he believed disciplinary letters

should remain on file to comply with the Employer’s policy and be able to rely on the

letters for progressive discipline. These were the very things considered by the

Enhanced Mediator. She noted the Employer’s concerns, took them into account, and

believed a compromise that the letters remain on file for two years as opposed to one,

51

was appropriate. We find no reason to disturb her recommendation. As stated in

Hudson’s Bay, reviewed above and referenced in Elbow Grease, there is no breach of

the principles set out in Yarrow Lodge nor did the Enhanced Mediator commit an error

or make a mistake of fact. We find the Employer is simply attempting another “kick at

the can”. Its argument is not persuasive and we refuse to disturb the recommendation.

H.

ARTICLE 25.07

[169] After receiving and reviewing submissions from the parties, the Arbitration Board

noted Article 25.07 incorrectly references other sub-paragraphs within Article 25. The

arbitration panel sought submissions from the parties as to how to deal with this and, if

a substitution is required, what Articles should be correctly referenced within this Article.

The Article currently reads:

25.07

The procedures stated in Articles 25.02, 25.03 and 25.10 do

not prevent immediate suspension or dismissal for just cause.

[170] The parties agree the Enhanced Mediator committed a drafting error which

needs correcting. Both parties agree Articles 25.02 and 25.03 have been incorrectly

included as neither refers to procedures. Both parties agree the Article should refer to

the procedures stated in Articles 25.04 (concerning prior notice of a disciplinary

meeting), 25.05 (concerning written warning for misconduct), and 25.06 (concerning

written warning for poor performance). Both parties therefore agree Article 25.07 needs

to be amended, at a minimum, to substitute these Articles in lieu of Articles 25.02 and

25.03 currently in the Article.

[171] The parties do not agree that Article 25.10 was incorrectly included. Whereas the

Union submits Article 25.10 was also included in error, the Employer disagrees. The

Employer argues that, subject to what the Arbitration Board does with Article 25.10, if

the Article is retained by the panel (which we have), it describes a procedure for the

removal of disciplinary records from an employee’s personnel file after two years. It

argues the procedure of retention of the letters should not prevent “immediate

suspension or dismissal for just cause”.

[172] We agree Article 25.10 describes a procedure for the removal of disciplinary

letters. Given that Article 25.07 refers to “procedures”, the inclusion by the Enhanced

Mediator of Article 25.10 within Article 25.07 as a procedure is not clearly an error.

[173] While the Union argues it has standard language in its other collective

agreements which refers only to the provisions within Articles 25.04, 25.05 and 25.06,

we do not find this outweighs or overcomes the burden of the Mediator’s inclusion of

Article 25.10 in her recommendation. Whether reference to Article 25.10 should be

included or excluded from this clause is arguable. The Union has a heavy burden to

52

overcome. Simply put, the Union’s argument is not compelling enough and we are not

persuaded to make the change to delete the reference to Article 25.10.

[174] As such, Article 25.07 is hereby amended to read:

25.07

The procedures stated in Articles 25.04. 25.05, 25.06, and

25.10 do not prevent immediate suspension or dismissal for just cause.

I.

FINANCIAL PROVISIONS: SALARY APPENDIX, RETROACTIVITY

[175] While discussing and arguing some of the provisions which follow separately, the

parties both recognized that the balance of the Articles and items in dispute (including

the salary appendix, recognitions of previous experience both for current and new

employees, flexible spending account, as well as retroactivity), involved significant

financial resources and outlay from SHS. These provisions are really at the hub of the

biggest part of the disagreement between the parties. Both parties spent a considerable

amount of their time and effort in addressing their concerns both in the evidence

presented as well as their written submissions.

[176] As the parties joined issue with how they approached their arguments

surrounding the salary appendix, Article 28, Letter of Understanding #3, and

retroactivity, we’ll do likewise and deal with these issues together.

[177] Rather than set out the Mediator’s recommended terms, we’ll set out the

Mediator’s Rationale as our starting point.

Mediator’s Rationale:

SALARY APPENDIX

The Union proposed a salary grid at the provincial rates retroactive to the

date of certification in 2017. It recognizes that rates are unlikely to

change during the term of this agreement because the AHS rates are

unlikely to change.

According to the Union the last pay adjustment was in 2016 and it

resulted in approximately a $2.00 per hour decrease for employees. This

action was one of the factors contributing to the certification. The Union

seeks to obtain the grid and provincial rates at the earliest opportunity.

At the same time, the Union does not wish the Employer to lose its AHS

service contract.

The Employer currently pays employees a set hourly rate, determined

under each individual contract of employment. It does not have a grid.

Under section 5.5.2 of the Policy Manual the Employer “recognizes that

in order to recruit and retain highly qualified Employees, the Employer

must provide salaries and benefits comparable to Federal or Provincial

53

Governments and/or private sector”. Section 3.5.2 of the Policy Manual

says: “Salary offers will be based on education, experience, knowledge,

and qualifications.”

As stated earlier, for the 16 full time employees, the salary rates vary

between $25.00 and $28.56 per hour for Primary Care Paramedics

(PCPs) and between $30.21 and $34.17 per hour for Advanced Care

Paramedics (ACPs). The Employer did not provide recent information for

the casual employees. The information I had was from 2017 which shows

casual employees were paid between $22.91 and $29.17 per hour

depending on their job.

The Employer raised concerns about the significant cost implications of

this proposal, coupled with the proposal to recognize previous

experience and retroactive pay. It projects at least a 25% cost increase

this year, which it says it cannot accommodate within its current budget.

It says it will not be able to achieve funding increases in any of its

revenue streams, so it anticipates layoffs to meet the funding shortfalls.

However, with layoffs comes the risk that it will be unable to meet its

contracted service levels, thus jeopardizing its service contracts.

In the mediation, the Employer provided general information about its

revenue sources, level of funding and budget but did not provide details.

It said that its limited committee resources were dedicated to responding

to the pandemic and until the threat eased for the Siksika Nation it would

not be able to provide details or supporting information.

It has four main revenue sources related to its ambulance services:

•

a service contract with Alberta Health Services that generates

approximately $83,000.00 per month based on providing two

advanced life support ambulances.

•

a fee for service contract with the Health Canada for ambulance

services with a sliding scale tied to the call, kilometers and level of

service provided. The contract does not include funding for

cancellations.

•

a fee for ambulance services for insurance companies related to

motor vehicle accidents.

reimbursement from Alberta Blue Cross for services for seniors.

SHS said its contract with Alberta Health Services is being negotiated

this year but it does not expect any funding increases in this economic

climate. It said that its contracts do not allow for fuel, uniforms or building

costs for ambulances. SHS said its revenue from Health Canada is also

down this year.

54

In 2017 the Employer provided a disclosure to the Union as part of the

Union’s initial actions to start bargaining. The disclosure was given to me

by the Union. Included in the disclosure was a copy of the 2013 Service

Agreement between SHS and AHS. From the Service Agreement I

observe:

• The Employer received just over $83,000.00 per month.

• The agreement contains an inflationary adjustment clause. “The

inflationary adjustment will be based on the average of the applicable

public sector wage settlements in the Province of Alberta and health-

related inflation for medical/surgical supplies and drugs and the

"Consumer Price Index Indicator'' comprised of all items in Alberta

excluding energy, tobacco and alcohol for non-health related

expenses. The Parties agree that the inflationary adjustment will not

exceed the proportionate percentage increase in funding granted to

AHS by the Government of Alberta to cover increased costs of

operations for the applicable period.”

• The Employer may charge User Fees from patients or third-party

payors on behalf of patients. The agreement set the user fees for

Alberta Blue Cross patients and another user fee for non-Blue Cross

patients.

• The agreement expired in 2016 but could be extended in two-year

periods.

• The Employer agreed to provide AHS with annual audited financial

statements, interim and quarterly financial statements, and other

monthly reports.

The Union did its own research on the Employer’s financial status by

reviewing financial statements filed by Siksika Nation under the First

Nations Financial Transparency Act, available at https://fnp-ppn.aadnc-

aandc.gc.ca/FNP/Main/Search/SearchFF.aspx?lang=eng. The Union

also compared the financial statements to those filed by Blood Tribe and

Samson (Maskwacis).

It reported that Siksika Nation has had a financial short fall for the years

2015 to 2018 for its health services department, ranging from $700k to

$1.9m. However, in 2019 Siksika Health Services had a surplus of

$1,070,876. There is no breakdown of what portion of funds are utilized

for Siksika EMS, which is a department of Siksika Health

Services. However, the overall budget in 2019 was $16,895,187.

In comparison, the Union reviewed the Blood Tribe Financial statement

and it showed a similar budget line for its health services of

approximately $16 million. There was no break down for

EMS/ambulance services.

55

Finally, the Union the financial statements of Samson Nation, (sic) which

includes the Maskwacis Ambulance service. Their financial statements

did have a breakdown of total actual budget for this service of $5,175,328

for 2019 and $5,477,044 in 2020, for their ambulance service. The

ambulance service website reveals they provide for three (3) ALS level

ambulance units, compared to SHS’s two units. Maskwacis Ambulance

service also has a contract with AHS.

The Employer did not respond to this information.

Historically, this Employer provided similar terms and conditions as those

to federally regulated employers under the Canada Labour Code. Its

policies refer to the Canada Labour Code at multiple locations. Yet, it

also provided some provincial terms and conditions, such as named

holidays, where they exceed the federal provisions.

Overall, the Employer has competitive terms and conditions and robust

policies. The Employer was also less opposed to most of the language

proposed by the Union. The Union was focused on its goal to obtain a

first agreement that captured the existing terms and conditions. These

factors were important in shaping my recommendations.

One exception occurs in salary compensation where the Employer’s

rates lag significantly behind the industry and other unionized employers.

One of the ways the Employer offset the salary levels was to provide a

very desirable work schedule.

Retroactivity

The matter of retroactivity is a negotiable item and there is no certainty

that the Union will be able to achieve any retroactivity in a first

agreement. Given the Employer’s resistance to the certification and the

time it took to complete the legal process the employees expect

retroactivity, but the Employer equally expects not to pay it.

I set a retroactivity date of September 14, 2020 which is the date the

parties met in the resolution conference with the ALRB and agreed to the

Enhanced Mediation Directive. From this date the Employer had direct

ability to influence the Union and reach an agreed date.

Only the salary grid portion of this recommendation will be retroactive.

All other provisions are effective the date of ratification unless stated to

be a different date. To be more specific, the recognition for previous

experience in Article 28 and Letter of Understanding #3 will be effective

the date of ratification.

Salary Grid

56

I recommend a grid rather than the single hourly rate for each

classification. Because of the significant gap between the current rates

and the well-established industry comparables, I believe the grid will

have to start at lower rates and increase through the term of the

agreement. By the end of this term, the grid will not yet match the

industry rates, but the parties can address the smaller gap in their next

round of bargaining.

I recommend the grid start ten percent (10%) below the provincial or

industry rates and increase two percent (2%) on April 1, 2021 and two

percent (2%) on April 1, 2022. By the end of the term the rates will be at

94% of the industry rates. While this will be a significant cost to the

Employer, it is the most significant recommendation in this Report

whereas most of the remaining recommendations capture the status quo.

The other financial impact is the Flexible Spending Account but I have

recommended a minimal value and an implementation in the last year of

the term.

Employer’s Position on Financials

[178] The parties’ arguments are lengthy in this area but the Mediator captured the gist

of both positions well. As a consequence, we focus most of our attention on the

evidence presented by the parties at the arbitration.

[179] Before putting forth its positions on its financials, SHS addressed why it didn’t

participate in the mediation process in a more fulsome manner. In this regard, SHS

referred to the evidence of both Vicki Yellow Old Woman and Tom Littlechild as both

spoke about the efforts of Siksika Nation, and particularly SHS, relating to the

comprehensive and time-consuming efforts put in by the community and its health care

services to deal with the pandemic. Ms. Yellow Old Woman, in particular, spoke of the

125 days in a row she worked to keep up with her daily work volume as well as the

issues, strains, and worries brought about as a consequence of the pandemic. Ms.

Yellow Old Woman testified that in her opinion, many of the Covid related issues are

more challenging in a relatively isolated community like Siksika Nation where there are

not a lot of other supports. There was, Ms. Yellow Old Woman explained, “an enormous

amount of additional work to do” for everyone from paid hourly staff to their managers

and administrators, right up to the upper echelons of the First Nation itself. Tom

Littlechild also gave evidence regarding the additional demands and work created by

the Covid-19 pandemic for the EMS department of SHS, including administrators and

employees in the bargaining unit. Simply put, it was “all hands-on deck”.

[180] SHS submits that the position taken by SHS at the enhanced mediation

regarding the effect of Covid on its ability to participate in the mediation process was not

57

a tactic or an excuse, but a legitimate explanation of the challenges it faced in response

to a global pandemic that dramatically effected many social and economic activities in

Canada, and should be given appropriate weight and consideration by this Arbitration

Board in terms of the question of delay or cooperation during the enhanced mediation

process, and the appropriateness of the retroactive date recommended by the Mediator.

[181] With respect to financials as it impacts SHS, the Employer identified three main

concerns. First, SHS has concerns regarding the amount of the proposed salary

increases in the Salary Appendix based on its financial state as a non-profit

organization with limited funding, and its ability to pay. Second, SHS has concerns

about the retroactive start date for salary increases on September 14, 2020 (being the

date the enhanced mediation began) and the significant economic impact this will have

on SHS. And third, SHS has concerns about the requirement to recognize the prior

experience of current employees with an employer other than SHS.

[182] SHS submits both in the evidence before the Enhanced Mediator as well as this

Arbitration Board that the financials disclose a significant aggregate loss, with the

accumulated losses for 2015 through 2018 far exceeding the recorded surplus in 2019.

Based on the forgoing, SHS submits there was sufficient evidence available and

considered by the Mediator to establish that SHS’s concerns regarding its financial

state, and its ability to pay salary increases and other cost increases arising from the

Collective Agreement were genuine and well-founded.

[183] At the hearing before us, Ms. Yellow Old Woman provided evidence concerning

the financial position of SHS. After reviewing the financials statements which may or

may not have been reviewed at enhanced mediation, she indicated that:

• most of SHS’s funding is tied or earmarked for specific purposes which are not

available to be used or transferred elsewhere within the organization;

• the annual surplus recorded in the financial statements for the fiscal year ended

in 2019 and 2020 actually hide a deficit for those years because the “surplus”

was tied funding that could only be used in subsequent years for a specific

purpose that does not include salaries or other costs for employees in the

bargaining unit; and

• the financial statement for the fiscal year ending March 31, 2020 at ex. 12, is the

last such financial statement currently available for SHS.

[184] Ms. Yellow Old Woman’s evidence at the arbitration hearing was that even

excluding the “extraordinary expense items” in 2021, EMS ran an annual budget deficit

of between $204,259 and at least $348,134 between 2019 and 2021, plus additional

deficits arising from the capital expense of purchasing new ambulances. She also

testified that the budget deficit for the current fiscal year could be as much as $672,257.

58

[185] Tom Littlechild testified about the current salaries of employees in the bargaining

unit noting that the total annual salary cost for all employees before overtime is

$1,056,196. With the increases recommended by the Mediator, and after recognition of

prior experience with SHS is applied, the total annual salary cost for employees before

overtime will be $1,246,889 as of April 1, 2022. This represents an 18% salary increase

relative to the salaries currently paid by SHS to these employees. The salary increases

for casual employees will actually be higher than 18% since their salaries are currently

lower than the fulltime permanent employees.

[186] SHS submits that in addition to the salary increases, it will be required to incur

significant increases under the Collective Agreement due to the retroactive application

of salary increases to September 14, 2020, the cost of a new flexible spending account

for employees receiving benefits, and the requirement to recognize prior experience of

new hires with other employers besides SHS.

[187] In the Enhanced Mediator’s Report, the Mediator indicates the salary grid “will

have to start at lower rates”, and that “by the end of the term the rates will be 94% of the

industry rates”. SHS acknowledges this represents a compromise and SHS does not

challenge the industry comparable provincial rates relied upon by the Mediator.

However, SHS submits that notwithstanding this compromise, the salary increase is still

too great for it to incur in one collective agreement, based on its non-profit status and

limited funding, and taking into consideration the other cost increases it will have to

incur under the Collective Agreement. For this reason, argues the Employer, the

Mediator’s salary recommendations are rebuttable and not persuasive.

[188] The Employer also submits that the Salary Appendix should be amended by

deleting the retroactive application of salary increases, and only applying the salary

increases as of the date this Arbitration Board makes its order. SHS acknowledges the

September 2020 date for retroactivity was a compromise as the Union was seeking

retroactivity back to the date of certification in 2017, but the September 2020 is

rebuttable and not persuasive nor reasonable in the circumstances. As noted by the

Mediator, argues the Employer, under the replication principle, there is no reason to

believe that SHS would ever have agreed to the retroactive application of salary

increases in collective bargaining.

[189] The Employer says that while the constitutional jurisdiction litigation took time

proceeding through the courts, the various levels of court acknowledged it had a

“serious issue to be tried” and, as such, any of the time it took to litigate this matter

through and until the leave to appeal was dismissed by the Supreme Court of Canada

should not “count” as a compromise as to when to start the retroactivity. SHS argues it

had no control over this time period and, with the legal stays of proceedings in place,

had no legal obligation to bargain. Thus, the Mediator’s “compromise” isn’t really much

of one. The first date there was no uncertainty surrounding the bargaining relationship

59

was June 11, 2020 when the Supreme Court of Canada denied to hear SHS’s appeal.

SHS submits there is no evidence of delay by SHS between June 11, 2020 to

September 14, 2020, the date enhanced mediation started and the date the Mediator

determined retroactivity should flow from. Not only is there no evidence of delay, argues

the Employer, it is unreasonable to set the retroactivity date for salary increases to the

first day of enhanced mediation. While SHS did, at that time, have the ability to

participate in the process and reach a memorandum of settlement, it would have

required SHS to immediately concede all issues in dispute in order to conclude a

collective agreement at that time.

Union’s Positions on Financials

[190] HSAA submits that while the Employer has concerns regarding the increases

recommended via enhanced mediation and the Employer indicated they were unable to

present detailed financial information to the Mediator for review due to the pandemic

situation, the Employer itself acknowledged before the Labour Relations Board that the

COVID cases on Siksika Nation had dropped from their peak numbers at the time of the

application to appoint this Arbitration Board. (See paragraph 12 of the August 5, 2021

Referral to First Contract Arbitration Decision).

[191] And, as found by the Labour Relations Board, the Employer did nothing to

prepare itself for the expedited bargaining process to which it had committed itself.

While the Employer did provide “general comments” to the Mediator, the Employer did

not actively engage in the process.

[192] HSAA argues that while SHS presented additional financial information to the

Arbitration Board, the evidence lacked substantive detail and insight into the Employer’s

assertion regarding inability to pay and the Employer ultimately relied on “unaudited”

financial statements to substantiate their position.

[193] The Union acknowledges Ms. Yellow Old Woman did present financial

information that showed in 2020/2021 that there were significant liabilities in the form of

“advances from related Nation entities and departments”, however, she was unable to

specify what part of SHS the monies were being transferred to and whether the

emergency services revenue was being shared among other SHS programs/services.

[194] Ms. Yellow Old Woman acknowledged that SHS had been consistently operating

in a deficit and despite the ongoing deficit, had chosen to absorb and write off a

significant amount of “bad debt” during the 2020 fiscal year. Despite its operating debt

position, and despite Ms. Yellow Old Woman’s testimony that the organization had a

significant amount of the old debt over the past 10 years, the Union says the Employer

did not raise this with the Mediator. This despite the fact the Employer raised significant

60

objection to salary increases during mediation, and despite the fact that Mr. Littlechild

would have had access to the financial documents himself at the time of mediation.

[195] Ms. Yellow Old Woman also acknowledged that in some years the annual deficit

of the SHS was quite large, yet the organization simply carried on without alteration. Ms.

Yellow Old Woman acknowledged that while asking the Nation to forgive their debt was

an option, they could also renegotiate funding with the Federal Government and/or AHS

to manage their ongoing deficit.

[196] HSAA submits that based on this information, the Employer cannot prove it is

unable to fund the increases recommended by the Mediator. The Employer has

continued to operate under a fiscal deficit since at least 2016 and there is nothing to

suggest it can’t continue to do so. The Employer has made multiple financial decisions

to the detriment of SEMS’s financial bottom-line including the decision to write off 10

years of “bad debt”, not take the 10% administration fee owed, and the decision not to

broach possible salary increases with Siksika Nation, the Federal Government, or most

importantly, Alberta Health Services. All of these decisions have contributed to the

Employer’s deficit in a significant way. It has not discussed, let alone attempted to

negotiate, an increase in funding from Alberta Health Services. It is just assuming the

funding level will remain the same. However, given a large number of providers funded

by AHS are unionized, and given SHS is a newly unionized employer, AHS would

understand the need to increase its funding levels to SHS to accommodate collective

agreement increases. Despite this, SHS has not even canvassed this with AHS.

[197] The Union argues that SEMS employees, who have also been working to

exhaustion during COVID, have been required to subsidize the financial choices and

decisions of the Employer.

[198] HSAA also submits that while the Employer has actively avoided negotiating in a

meaningful way with HSAA, their employees have missed out on increases and other

improvements that one would expect to find in a first collective agreement negotiated

organically between the parties. As a result, other comparator EMS groups have

enjoyed improvements and inflation has increased as the panel heard in the evidence

given by Mr. Mior.

[199] In Springhill Police Association¹⁸, Arbitrator Richardson similarly observed that a

public body cannot be excused from paying fair wages because it chose to expend its

financial resources in other ways (paras 22, 23). Allowing a government’s self-imposed

budgetary limitations and priorities to dictate the outcome of an interest arbitration

involving a public body would jeopardize arbitral independence

¹⁸Springhill Police Ass’n, Local 203 v Springhill (Town) (Interest Arbitration Grievance), [2013] NSLAA No

2.

61

[200] Based on the above, HSAA submits that SHS has not met their onus to show

that the collective agreement recommendations made by Mediator are a “critical factor”

as described in Yarrow Lodge and that the recommendations will place the Employer’s

financial state in any further jeopardy than it is currently.

[201] With respect to the recommendation that salary rates would be retroactive to

Sept 14, 2020, HSAA submits that this is appropriate. While the employer argues that

there is “no reason to believe that SHS would have ever agreed to the retroactive

application of salary increases in collective bargaining”, HSAA reiterates that if the

Employer had engaged in the bargaining process in a meaningful way prior to 2022, the

salary increases would already be in place for this bargaining unit.

[202] Finally, the Union argues that Interest Arbitrators generally take a careful look at

the local economy. In Brantwood Residential Development Centre v S.E.I.U, Local 1,

2012 CarswellOnt 3211 (Williamson) paras 15-23 (“Brantwood”) the arbitrator

summarized ability to pay arguments and concluded that where the employer receives

its funding through transfers from the provincial government, “an interest award arising

out of arbitration should reflect the wage settlements that have been freely negotiated

elsewhere in the economy and especially by those employees who are performing

similar work in the local community for other employers” (Brantwood, para 17).

Panel’s Decision on Financial Provisions:

1.

Pandemic no excuse to breach legal responsibilities

[203] First, there is no doubt that COVID and the response to the pandemic caused

significant upheaval in the day-to-day lives of everyone and the operations of all

organizations. To say it has been a stressful time is an understatement. COVID caused

a significant loss of life in addition to the ongoing and continuing impact on the physical

health and mental well-being of others. Many people, but especially those in healthcare,

put in countless extra hours planning, strategizing, and implementing safety protocols

designed for the benefit of all within our communities. Dealing with the ramifications of

the pandemic has been exhausting, stressful, nerve-wracking, and burdensome for all

involved. Especially as we enter, yet again, another new phase of the approach to the

pandemic with significant loosening of restrictions, it is important to reflect on the

stresses and strains of those both on the front lines of the pandemic and the leaders

trying to strategize the best approach in how to deal with both the pandemic itself, but

also the impact of it. We are grateful for the work and care undertaken by all of these

leaders and front-line staff including Ms. Yellow Old Woman, Mr. Littlechild, and all the

emergency services personnel within SHS.

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[204] However, the existence of the pandemic and the needed response to address its

consequences does not negate the responsibility to follow the law in whatever form the

law takes.

[205] It is trite to state that an individual’s or organization’s requirement to follow the

law does not end simply because they do not agree with it or do not believe it should

take priority over other objectives. Yet that is precisely what SHS did. While successful

on some of its stay applications involving the constitutional challenges, SHS tried, and

failed, to get adjournments into the proceedings involving both the certification

application brought by HSAA and then the legal requirement to engage in good faith

bargaining under the legislation. Right from the beginning of its relationship with the

Union, HSAA asserted SHS refused to accept its legal responsibilities and was taking

“matters into its own hands”¹⁹and refusing to bargain collectively despite legal

requirements to do so. The Labour Relations Board subsequently noted the same

conduct, finding that SHS was ignoring its legal obligations and, instead, was focusing

its attentions and priorities on other matters SHS perceived and believed were more

important. As noted above in paragraph [7] and found by the Labour Relations Board in

the August 5, 2021, Referral to First Contract Arbitration Decision at paragraph 126, it

was a choice of priorities to ignore the legal requirements which completely frustrated

the bargaining process. The Labour Relations Board found:

… SHS chose not to begin preparations for bargaining. It chose not to

prepare to do so even after it had consented to the mediation process.

It continued to choose not to direct any urgent time or resources into the

process, despite being in the middle of a legal process ordered by the

Board.

[206] The Labour Board went on to find that by choosing to ignore its legal obligations,

SHS engaged in a deliberate effort at union avoidance (para 128).

[207] While we heard evidence from Ms. Yellow Old Woman and Mr. Littlechild

explaining SHS’s reasoning for not engaging in appropriate collective bargaining, their

evidence merely reflects the very commentary remarked upon by the Labour Relations

Board; that SHS’s conduct involved a choice of priorities that ignored the organization’s

legal responsibilities. It is the Labour Relations Board that has the statutory role to

adjudicate issues of this kind and it found a violation of the legislation. An attempt now

by SHS to explain unlawful conduct does not derogate or diminish the Labour Relations

Board’s finding. The Labour Relations Board found, and we accept, that SHS engaged

in bad faith bargaining by adopting “extreme bargaining positions” through its refusal to

engage in bargaining of any nature let alone bargaining in good faith.

¹⁹SiksikaHealth Services v Health Sciences Associationof Alberta, 2017 CanLII61259, para 10 (Alta

LRB Stay Application)

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[208] We cannot condone behaviour which ignores the law. We strongly disagree with

SHS’s assertion that its conduct is a legitimate explanation of the challenges it faced

and should be given appropriate weight and consideration by this Arbitration Board in

terms of the question of delay or cooperation during the collective bargaining and

mediation process. SHS tried to adjourn the legal process and when it failed, it simply

ignored the process. That decision carries consequences. It is said colloquially among

some legal counsel that “parties are free to litigate but they can’t litigate for free”. That

sentiment is apt here. There is a cost for failing to follow the law and intentionally

thwarting the process.

[209] Further, and in any event, after arguing that its actions in agreeing to many of the

Mediator’s recommendations proves it is not re-litigating items or taking another “kick at

the can”, the Employer’s argument that we, as the Arbitration Board, should take into

consideration its response to the pandemic as a reasonable explanation for its conduct,

simply carries no weight. The Labour Relations Board, as the statutory body

empowered to adjudicate on bad faith conduct complaints, has already ruled against

SHS in this regard. Not only do we not have the statutory authority to reconsider its

decision, to do so would truly be taking another kick at the can and re-litigating a finding

already made.

[210] For these reasons we do not accept the Employer’s rationale for choosing not to

participate in the collective bargaining and enhanced mediation process as a

reasonable explanation for its conduct and failing to bargain in good faith.

2.

Determination of the Compensation Matters in Dispute in the Salary

Appendix

[211] First, we note that SHS takes no issue with the Mediator’s use of comparable

collective agreements in considering the various increases and increment steps for both

PCPs and ACPs. Rather, the Employer’s primary focus is that it simply cannot afford the

proposed salary increases in the Salary Appendix in addition to the proposed

retroactivity based on its financial state as a non-profit organization with limited funding,

and its ability to pay.

[212] The Mediator notes the rates paid by the Employer are significantly below

industry standards. Her recommendations include a salary grid starting at lower rates

but which go up by the end of the term to rates within 94% of the industry standard.

SHS acknowledges this represents a compromise and is still short of the industry

comparable provincial rates relied upon by the Mediator. However, SHS submits that

notwithstanding this compromise, the salary increase is still too great for it to incur in

one collective agreement, based on its non-profit status and limited funding, and taking

into consideration the other cost increases it will have to incur under the Collective

64

Agreement. For this reason, argues the Employer, the Mediator’s salary

recommendations are rebuttable and not persuasive.

[213] SHS submits both in the evidence before the Enhanced Mediator as well as this

Arbitration Board that the financials disclose a significant year-over-year aggregate loss,

with accumulated deficits far exceeding the recorded surplus in 2019. It submits there

was sufficient evidence available and considered by the Mediator to establish that

SHS’s concerns regarding its financial state, and its ability to pay salary increases and

other cost increases arising from the Collective Agreement were genuine and well-

founded.

[214] The Employer also argues that the evidence before us further establishes its

inability to pay as most of SHS’s funding is tied or earmarked for specific purposes

which are not available to be used or transferred elsewhere within the organization, and

the annual surplus recorded in the financial statements for the fiscal year ended in 2019

and 2020 actually hide an annual deficit for those years because the “surplus” was tied

funding that could only be used in subsequent years for a specific purpose.

[215] We agree with the Employer that a portion of SHS’s funding is program-specific

funding which is dedicated to, and cannot be allocated to anything but the dedicated

program. We also accept that the “surplus” shown for the fiscal year 2019 was, in fact,

dedicated funding for the Jordan’s Principle which ensures all First Nations children

living in Canada can access the products, services and supports they need, when they

need them. As such, we accept that for each of the last six years (2015-2020), SHS has

been operating in a deficit position as per its budget.

[216] We further accept that based on its current negotiated funding streams, levels,

and revenues, and, as per its budget-lines as laid-out, SEMS will find it difficult to

balance its budget and absorb an increase in compensation, let alone one of 18% over

the term of the Collective Agreement.

[217] Notwithstanding its difficulties, the Employer proposes it could accommodate an

overall decrease of 5% of the Mediator’s recommendation.²⁰However, in making this

proposal, it does not indicate where the money will come from or how the increase will

be funded.

²⁰Previous drafts of this Award sent to the ArbitrationBoard for review and comment inadvertently

indicated the Employer offered an increaseof 5% of its current salary as opposed to a reduction of 5%

from that proposed by the Mediator. The Chair of this Panel gratefully thanks the Employer’s nominee for

catching this error in her dissent. After receipt of the dissent, and further discussionwith the Arbitration

Board, it has been corrected with consent of the Board in this final version. The Dissent has not been

amended to reflect this change out of concern to issue this final Award in a timely fashion. While the

rectifiedand correct Employer position does amount to an increasein the Employer’s position, it does not

change the majority decision of the Arbitration Board as the commentary and rationale which follows

remains.

65

[218] Therein lies our problem and concern.

[219] The Employer contends it cannot afford the Mediator’s recommendation as it is a

not-for-profit organization with funding mechanisms that cannot be adjusted.²¹The

Employer contends it is in a constant deficit position. Indeed, even in the one year its

budgetary records showed it was in a surplus position, it produced evidence

demonstrating that it was actually in a deficit because of the dedicated Jordan Principle

funds.

[220] It is not clear to us how it can continue to operate “as-is”, let alone with the

Employer’s proposed 5% decrease to salaries as recommended by the Mediator.²²The

numbers indicate SEMS is in an ongoing and continuous state of being under-funded.

Yet, the evidence we heard was that despite not having the level of funding necessary

to properly fund SEMS, the organization continued uninterrupted and without any cut-

backs of any kind. In fact, the organization was funding, and did fund, the purchase of

two new ambulances. If it was truly unable to fund itself, as contended, how can it make

such large purchases? And how can it fund and absorb an increase to salaries and

benefits? And if it can absorb the Mediator’s recommended increase less 5%, why can’t

it absorb the recommended increases by the Mediator?

[221] We are not satisfied the Employer is as financially strapped as it contends as it

has continued to operate as if fully funded for years without cut-backs or down-sizing or

any evident impact on its operations. Somehow, either through the good governance or

good graces of Siksika Nation or an expectation or understanding that the operational

deficit of SEMS will be absorbed or otherwise dealt with by the Nation, SHS and SEMS

has simply been able to carry on with its operations and ignore its funding deficits.

Further, we believe there are other funding sources the Employer has either not

considered or has not fully accessed.

[222] We concur with the Union that the Employer has made multiple financial

decisions to the detriment of SEMS’s financial bottom-line. This includes the decision to

write off 10 years of “bad debt”; it includes the decision not to take the 10%

administration fee available to it from Siksika Nation or SHS; and, most notably, it

includes the decisions not to broach possible salary increases and contract increments

with Siksika Nation, the Federal Government, or, most importantly, Alberta Health

Services. While the current agreements with the Federal Government, and AHS in

particular, are for specific dollar amounts, these agreements are negotiable. In not

negotiating or even discussing the possibility of increased contractual payments from

²¹As noted by the dissent of the Employer’s nominee, previous drafts of this Award contained slightly

different phraseology in this paragraph. Again, after further discussionamongst the ArbitrationBoard after

receipt of the dissent, with full consent of the Board the phraseology has been altered in the final version.

²²See footnote 20.

66

Alberta Health Services, SHS is basing its financial picture solely on its current funding

arrangements. However, and as argued by the Union, given a large number of providers

funded by AHS are unionized, and given SHS is a newly unionized employer, we

anticipate AHS would recognize the need to restructure its agreement with SHS to

accommodate collective agreement increases. The Federal Government may well do

the same thing.

[223] The Employer’s inability to pay argument has long been the subject of Interest

Arbitration decisions. In Newport Harbour Care Centre Partnership and AUPE Local 048

Chapter 014, (cited earlier under General Interest Arbitration Principles), Arbitrator Sims

noted that the ability to pay principle is applied differently to private sector employers

than to public sector employment. Further, the labour market and the expectations of

wages and working conditions and its labour supply are molded by the broader industry.

He states:

[14] One criterion at play in interest arbitration is the Employer’s ability

to pay. It has long been controversial on several counts. First it is a

principle that is applied somewhat differently to private sector employers

than to public sector employment. A private sector employer advancing

such an argument must be prepared to disclose its financial situation to

support such a plea, where it might not otherwise be required to do so. In

the public sector, the more limited applicability of the principle stems from

the broad proposition that “public sector employees should not be

required to subsidize the community by accepting substandard wages

and working conditions.” This arbitrator reviewed some of these

arguments in Olds College v. Olds College Faculty Association

(unreported decision, January 31, 2011, Sims):

The parties place different emphasis on the weight to be given to

general economic conditions, the fiscal position of the College, and

on what are often called “ability to pay” arguments. The Association

refers to the observations of Arbitrator Shime in General Truck

Drivers and later in McMaster University, where he said:

I am also in agreement with the faculty that there is little

economic rationale for using ability to pay as a criterion in

arbitration. In that regard I need only briefly repeat what I have

said in another context, that is, public sector employees should

not be required to subsidize the community by accepting

substandard wages and working conditions: see, e.g., General

Truck Drivers, etc. v. B.C. Railway Co. (1973) (Shime); Re

University of Manitoba, May 16, 1979 (Williams). Thus, for

example, if I were faced with data showing that the salary scale

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for assistant professors at McMaster was less than that of other

universities in Ontario, I would have no hesitation in increasing

the amount to achieve the same standard for McMaster

regardless of the university’s fiscal position.

[224] Arbitrator Richardson in Springhill Police Association, Local 203 v Town of

Springhill, [2013] NSLAA no 2, 2013 CarswellNS 90, likewise observed a difference for

employers in the private and public sectors. Starting at paragraph 20, he notes that an

employer’s ability to pay can be measured by objective criteria in the private sector, with

fixed and operating costs that can be measured. “Its ability to generate revenue and

profit is dependent upon its costs as well as the price it can charge for its products or

services”. However, says Arbitrator Richardson, the consideration for a public sector

employer is quite different as the “ability to pay means simply that the employer for

reasons which are often political, does not want to pay” (para 21). Arbitrator Richardson

notes that public sector employers always have the ability to pay as they can raise

funds either directly or indirectly through the use of its tax base. In this sense, public

sector employers are not subject to the same market economy as private sector

employers. As did Arbitrator Sims in Newport Harbour, Arbitrator Richardson also cites

the B.C. Railway decision²³at paragraph 22, agreeing that a public body cannot be

excused from paying fair wages because it chose to expend its financial resources in

other ways. “If the community needs and demands the public service, then the

members of the community must bear the necessary cost to provide fair and equitable

wages and not expect the employees to subsidize the service by accepting substandard

wages”. Arbitrator Richardson concludes his discussion in this paragraph by noting “this

does not mean that the public sector employer must be the best employer in the

community – rather, it should be ‘a good employer and also be seen as a fair

employer’”.

[225] The Employer stresses it is not a public sector employer as contemplated in

Springhill Police Association as its operations are not funded by a traditional tax base

where it can raise or lower taxes to pay for its operations, nor is it a “public body”. It

argues it is purely a not-for-profit with no ability to raise additional funding outside of its

contracts. However, while Siksika Nation and its operations including SHS may not fall

into the category of a traditional public sector employer, it is, nonetheless, a variant of a

public sector body as it does receive funding both through various government funded

programs, as well as its own operations and enterprises. The Nation, and its various

departments and operations, make decisions, in part, based on community needs.

Indeed, we heard evidence that almost the entirety of SHS’s structure is driven by the

needs of the community and the decisions of Siksika Nation to either fund the programs

or provide access and focus through its various services for SHS to operate.

²³BritishColumbia Railway and General Truck Drivers and Helpers Union, Local 31, Re [1976

CarswellBC 1745 (B.C. Arb.)] (Shime, June 1, 1976) at p. 8

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[226] As outlined above, the most telling consideration in the structure and funding of

the Siksika Emergency Medical Services is that despite considerable year-over-year

funding deficits that would have bankrupt a traditional not-for-profit, or certainly curtailed

or changed its operations, SEMS merely continued “as-is” without cut-backs and without

alterations or concern to its operations. When asked by the Arbitration Board what

happens with the debt load of the SEMS, Ms. Yellow Old Woman testified that, at some

point in time “we’ll have to ask the Nation to absorb the debt”. In this sense we find that

funding is somewhat political – like any public sector entity – and it is a matter of

priorities for Siksika Nation. While SHS may be operating as a not-for-profit entity, it is

not truly a stand-alone entity where the survival of its operations and very existence is

dependent on its own abilities to raise monies and operate within its means. Given its

desire to continue the culturally sensitive approach to the provision of emergency

medical services, we believe it is likely that Siksika Nation will ensure the survival of

SEMS even though SEMS has been, and will likely continue to be, in a deficit position.

In this sense, although not a direct day-to-day funding source for SEMS and SHS, we

believe Siksika Nation is more like a silent partner and community umbrella protecting

and ensuring the viability and operations of SHS and that its components continue so

long as it meets the needs and goals of the community. Because of this, Siksika Nation

and SHS and its various components are similar to the operation of any public body

driven not by the considerations of a private corporation, but, rather, by the needs and

desires of the Nation’s community.

[227] Because of the above, we are not satisfied that the Mediator committed an error

in determining the salary rates in her recommendation, nor are the Employer’s

arguments persuasive. We find the funding – or lack thereof – for the SEMS has been

both a “political” decision (inasmuch as a choice of funding has been made vis-a-vis

other funding priorities) and a failure to inquire about and attempt to secure additional

funds. We are not satisfied the Employer has demonstrated sufficient reason nor offered

persuasive reasons to reduce the percentages recommended by the Mediator. Rather,

the Mediator’s recommendations on compensation were well-considered and are, in

general, significantly persuasive with respect to the overall structure. While the salaries

and other financial compensation recommendations are certainly higher than what is

currently in place, they are still well below the industry standards and percentages

offered in the industry generally. As held in Brantwood Residential Development Centre,

while lower, the Mediator’s recommendations reflect the wage settlements that have

been freely negotiated elsewhere in the economy and especially by those employees

who are performing similar work with similarly sized operations. They are certainly NOT

higher than those settlements, which was the concern in Brantwood. In this sense, the

financial compensation does not create a windfall for either party and there is no

“breakthrough” provision contained within. We believe, had both parties engaged in

good faith bargaining, that the recommendations replicate what could have been

obtained in collective bargaining. As such, the financial recommendations made by the

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Mediator shall remain.

3.

Retroactivity

[228] The Employer argues there should be no retroactive component to this Collective

Agreement as it did not unduly delay collective bargaining and, in any event, it never

would have agreed to retroactivity in collective bargaining. As such, argues the

Employer, an award containing retroactivity would not replicate what the parties could

have agreed to in bargaining.

[229] The Employer argues the Mediator’s recommendation that salary should be

retroactive to September 14, 2020 is an error. The Employer contends it had only

limited ability to influence the outcome of collective bargaining up to and including the

appointment of the Mediator on September 14, 2020. It was engaging in lawful litigation

challenging the Labour Relations Board’s constitutional jurisdiction through June 2020

and, thereafter, did not impede collective bargaining in any manner. The Employer

contends there is no rationale for the Mediator to choose the start of mediation as her

starting point for retroactivity. Even after that, there is no logical date where it can be

shown that the Employer impeded bargaining such that another date should be chosen

instead. The Employer points out that following the issuance of the Enhanced

Mediator’s Report, both the employees and the Employer rejected the Mediator’s

recommendations. Therefore, delays since February 2021 cannot likewise be laid at the

feet of the Employer. As such, there should be no retroactivity whatsoever. Finally, and

given the lengthy period of time under consideration, even if retroactivity could be

considered, payment of retroactive compensation will be a significant financial amount

for the Employer and it simply cannot afford it. It is unreasonable that an award of this

nature should be included.

[230] HSAA submits that the Employer’s argument in the immediate case is simply not

in line with the principle of replication. Further, argues the Union, by contending

retroactivity should not apply here, SHS is expecting its employees to subsidize the

Employer by accepting lower wages and benefits than their direct comparators who also

hold contracts with Alberta Health Services within the Public Sector.

[231] First, we disagree with the Employer that it did not delay collective bargaining

following the Supreme Court of Canada’s decision denying its leave to appeal

application. Our review of the evidence discloses that the Supreme Court of Canada

denied the Employer’s application on June 11, 2020. On June 18, 2020, HSAA sent a

letter to the Employer indicating it wished to commence collective bargaining and

requesting bargaining dates and the names of the Employer’s bargaining committee.

The Employer did not respond to this letter. On June 26, 2020, HSAA again

communicated with the Employer seeking the same information. The Union also

indicated that if it did not receive a response on or before July 9^th, it would be bringing

70

another application to the Labour Relations Board. Instead, on July 3^rd, a group of

employees brought a revocation application before the Labour Relations Board. Hearing

nothing back from SHS by July 9, 2020, the Union filed another bad faith bargaining

complaint against the Employer on July 10^th. The Labour Relations Board accepted the

complaint and ordered the Employer to provide a response to the bargaining in bad faith

complaint on or before July 31^st. From the Chair’s experience (as a former Vice-Chair

and Chair of the Labour Relations Board), such an Order from the Board typically

prompts the recalcitrant party to respond to the party seeking the order and engage or

re-engage in bargaining. Typically, thereafter, with the parties now in collective

bargaining, the bargaining in bad faith complaint is adjourned sine die. The Employer

did not respond in this manner. Rather, on July 27^th, it sought an extension of the

deadline to respond to the bargaining in bad faith complaint. The Labour Relations

Board agreed to provide an extension for the Employer’s response and a new deadline

was set for August 7^th. Instead of providing a response on that day, the Employer

applied for another stay of proceedings because of the pandemic. This was denied by

the Labour Relations Board. Finally, with the Employer still not having responded to

HSAA in any manner, the Employer agreed at a Labour Relations Board mandated

case management meeting to the appointment of the Mediator on September 14, 2020.

[232] As opposed to demonstrating cooperation and that its conduct did not impede or

delay the process following the determination of its jurisdictional dispute, the evidence

supports the finding of ongoing and continuing actions of SHS to ignore the law and its

legal obligations. We find that it could have, and should have, commenced bargaining

upon notification from HSAA on June 18, 2020. There is no legitimate excuse or reason

why the Employer did not respond to the Union nor engage in collective bargaining at

that time. Rather than start bargaining, it delayed and as suggested by the Labour

Relations Board, likely encouraged or perhaps enabled, another revocation application.

(See August 5, 2021, Referral to First Contract Arbitration Decision, para 127). It made

no efforts to even reply to the Union let alone engage in good faith bargaining. Thus, we

specifically do not accept the Employer’s position that it did not hamper bargaining and

that it could not have reached an agreement before the appointment of this Arbitration

Board.

[233] In the circumstances, and having reviewed the evidence, we find no reason that

the Employer could not have started bargaining on or about June 18, 2020. The only

possible explanation for its non-responsiveness is that it believed – and perhaps even

encouraged, (although we have limited evidence of this from the Labour Relations

Board’s decision) – that certain of its employees would file another revocation

application thereby hopefully (in the Employer’s belief) negating its requirement to

collectively bargain with the Union. Whether our supposition is accurate or not, it is

apparent that far from responding positively and engaging in good faith bargaining, the

Employer continued to ignore HSAA’s efforts to commence bargaining or even to

71

respond to the Union in any meaningful way (or at all) even after the appointment of the

Mediator by the Labour Relations Board.

[234] Retroactivity is the one area of concern the Chair of this Arbitration Board truly

questioned. Discussions and negotiations surrounding retroactivity in any collective

bargaining is usually a hard-bargained, highly contentious item in dispute. There is no

doubt that it is a significant cost item for an employer and one which an employer

cannot recover easily through simply increasing what it charges for its services or

product. It is an item that does not usually fit within “the replication model” and the

logical inference is that it is not usually awarded in a first agreement context.

[235] But there are exceptions to everything and this first agreement arbitration cries

out for such an exception. As held by the Labour Relations Board, the Employer here

engaged in bad faith bargaining by adopting an extreme bargaining position. It did not

bargain and did not engage with HSAA even after its constitutional challenge was

dismissed. To deny SEMS employees wage increments that likely would have, but for

the bad faith position adopted by the Employer, been achieved and applied much

earlier, is to reward the Employer for its wrongful actions. This is the antithesis of good

faith bargaining.

[236] As held by Arbitrator Casey in Rocky Ridge at paragraph [46], while interest

arbitrators should be cautious in awarding breakthrough provisions, agreements should

also be sufficiently generous to cause employers to realize it is in their best interests to

negotiate a fair deal directly with the union. We agree with this statement and add that

an award in this circumstance should also disincentivize employers from engaging in

bad faith bargaining.

[237] The majority of this Arbitration Board is satisfied the inclusion of retroactivity as

recommended by the Mediator is appropriate in these circumstances. While we

recognize this is a significant cost factor for the Employer, we cannot condone its

conduct and to not award retroactivity in this circumstance would do just that. As stated

by the Mediator, the Employer was in a position to control its destiny by the time the

Mediator was appointed by the Labour Relations Board. We agree given that the

Employer should have started bargaining in June 2020. The Mediator’s

recommendation that retroactivity go back to September 14, 2020 is understandable,

justifiable, and significantly persuasive. We are satisfied retroactivity shall apply back to

this date.

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J.

ARTICLE 28 – RECOGNITION OF PREVIOUS EXPERIENCE FOR NEW

EMPLOYEES; LETTER OF UNDERSTANDING #3 – RECOGNITION OF PREVIOUS

EXPERIENCE FOR CURRENT EMPLOYEES,

[238] Summary of dispute: Recognition of previous employment – both with SHS and

other employers – is a cost item for the Employer as it will move employees on the

salary grid. The Employer is prepared to recognize prior employment with itself but does

not believe its appropriate to recognize prior employment with other employers.

(1). Article 28 – Recognition of previous experience

Mediator’s Recommendations:

28.01 Salary recognition shall be granted for work experience acceptable to the

Employer, (including experience in the private sector) provided not more than

two (2) years have elapsed since such experience was obtained as outlined in

the following guidelines:

(a) one (1) annual increment for one (1) years’ experience within the last

three (3) years;

(b) two (2) annual increments for two (2) years' experience within the last four

(4) years;

(c) three (3) annual increments for three (3) years' experience within the last

five (5) years;

(d) four (4) annual increments for four (4) years' experience within the last six

(6) years;

(e) five (5) annual increments for five (5) years’ experience within the last

seven (7) years;

(f) seven (7) annual increments for seven (7) years’ experience within the

last nine (9) years; and

(g) eight (8) annual increments for eight (8) years’ experience within the last

ten (10) years.

28.02 deleted

28.03 The Employer shall advise all employees in writing at the time of hire as to the

pay grade and step in the Salary Scale.

28.04 At the time of hire, the Employer shall advise employees in writing as to the

applicable pay grade and step in the Salary Scale, including reference to the

recognition of previous experience.

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28.05 This Article does not apply to prior casual experience (measured in hours);

however, the Employer may consider such prior casual hours at its discretion.

Mediator’s Rationale:

The Union proposed the Employer provide salary recognition for an

employee’s previous experience. This is a significant and priority

proposal for the Union.

The language is drawn from the Prairie Agreement. The Wheatland

Agreement contains similar provisions. It also specifies that casual

employees are not given recognition for previous experience when hired;

they are placed on step 1 of the salary grid and given increments after

the completion of each 2190 hours. If a casual employee is hired into a

full-time position, the recognition of previous experience applies at that

time.

The Bonnyville Agreement recognizes up to eight years’ experience for

employees hired after date of ratification. Casual employees are entitled

to salary recognition on the same basis.

The Stettler Agreement recognizes up to six years of previous

experience. Casual employees are entitled to salary recognition on the

same basis.

The AHS Agreement recognizes up to eight years of experience. The

Cold Lake Agreement contains a formula for recognition of up to eight

years of previous experience for employees. Casual employees are

entitled to salary recognition on the same basis.

The East Central Agreement and the Whitecourt Agreement contain no

formula for recognition for previous experience. Rather, both Agreements

contain a general clause stating: “Both parties to this Collective

Agreement recognize that Employees normally improve in skill and ability

relative to experience. To the extent practical, the Employer will offer a

new Employee a wage that reflects the skill and experience the

Employee brings to the position.”

This proposal, along with the salary grid, drew the most significant

response from the Employer. The Employer says it will be unable to

financially accommodate this cost within its current budget saying it will

cost over $250,000.00 per year to apply this proposal to its full-time

employees only. It suggested the parties amend the salary grid, amend

the recognition or delay implementation.

The Employer does not currently have a grid and it determined what

salary to offer each employee, which salary is specified in the individual

74

contracts of employment. Section 3.5.2 of the Policy Manual says:

“Salary offers will be based on education, experience, knowledge, and

qualifications.”

For the 16 full time employees, the salary rates vary between $25.00 and

$34.17 per hour. Employees have from one year to almost 21 years of

service with this Employer, with all but three employees having six or

more years of service. A comparison of wages with years of service

reveals no trends or common principles for recognition of experience.

This proposal has a significant monetary impact. It needs to be

considered as part of the total compensation package. It is a concept

incorporated into a majority of comparable agreements, including the first

agreement at Cold Lake. However, I amend the proposal to match the

Cold Lake Agreement in three areas:

• set the maximum at eight years previous experience,

• remove the clause 28.02 accumulation, and

• include a provision restricting recognition of prior casual experience.

(2). Letter of Understanding #3: Recognition for Previous Experience and

Confirmation of Employee Information

Mediator’s Recommendation:

Siksika EMS undertakes to review, to be completed within two (2) months of ratification,

into the manner in which employees have already been recognized for previous

experience in accordance with the provisions of article 28 of the Collective Agreement

and to apply any increments for recognition of previous experience. No employee

will have a reduction in rate of pay as a result of this review. Any salary adjustments

will be effective on the date of ratification of the Collective Agreement.

The Employer will provide to each bargaining unit member the following employee

profile information:

• Date of Employment

• Seniority Date (established as the date on which the employee’s commenced

employment with the employer)

• Employee’s FTE (full-time equivalency)

• Classification

• Rate of Pay

• Anniversary date for increment purposes (and if casual, hours worked towards

the next increment)

• Vacation bank amount, and vacation entitlement level

• Sick Bank amount

• Confirmation of group benefits eligibility, with no new waiting period

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The Employer shall have thirty (30) days to provide this information HSAA and

employees.

Employees shall have fourteen (14) days from receipt of the above information to advise

the Employer of any discrepancies in the information.

In the event that corrections of these discrepancies cannot be accomplished through the

agreement of the parties, the provisions of Article 8 (Grievance Procedure) of the

collective agreement shall be invoked.

Mediator’s Rationale:

This Letter of Understanding is tied to other articles regarding recognition of

previous experience. Any changes to those articles may need to be reflected

here.

This works in conjunction with article 28. The existing employees are

placed on the new grid in accordance with the principles enunciated in

Article 28.

Positions of the Parties:

[239] SHS’s concern relates to the cost of having to recognize the prior experience of

new hires with the employers other than SHS. The Mediator’s Rationale indicates this

issue, together with the cost of the salary grid, drew the most significant response from

the Employer at enhanced mediation.

[240] SHS submits that current SEMS employees stand on a different footing to new

hires based on their existing employment relationship with SHS. As a result, SHS

accepts that current employees should progress through the salary grid based on their

seniority and service with SHS. However, SHS does not agree that the principles of

seniority or fairness require it to recognize the past experience of new hires with other

employers in the same way. Instead, SHS submits it should have the discretion to

determine where new hires begin in the salary grid based on “market principles”.

[241] In the Mediator’s Report, the Mediator states that HSAA’s proposal with respect

to recognition of prior experience in Article 28 “has a significant monetary impact” on

SHS.

[242] The Mediator’s Report also states that the Mediator amended HSAA’s proposal

based on a comparable first collective agreement (the Cold Lake Agreement), by

reducing the maximum years of previous experience from 9 to 8, and making other

changes that SHS submits are relatively minor.

[243] SHS acknowledges that the changes made by the Mediator in Article 28

represent an attempt at compromise. However, SHS submits that the specific changes

made by the Mediator have relatively little impact on the financial consequences of

76

Article 28 for SHS, particularly if one considers the concurrent obligation under the

Collective Agreement to recognize the past service of current employees for the

purpose of slotting them into, and moving them up, the salary grid. For these reasons,

SHS submits that the Mediator’s recommendations regarding Article 28 are rebuttable

and not persuasive or reasonable, with due respect to the Mediator, as they relate to

new hires.

[244] HSAA submits that the recommendation of the Mediator contained within the

Enhanced Mediation Report outlines that the Employer has a policy which outlines a

similar method of offering salary rates based on education, experience, knowledge, and

qualifications for new and current employees.

[245] However, the Mediator’s Recommendations are cognizant of the lack of rationale

for the current salaries that are paid to each employee as they vary widely. The

Mediator noted employees with less service with the Employer are paid more than

employees with more service. There is no pattern demonstrated that links previous

service with salary. The Employer did not explain the pay differences during the

mediation so providing a time for the Employer to provide the information is necessary

before final salary recognition can be calculated. The information sought by the Union

will be necessary for employees and the Union to begin administration of the collective

agreement.

[246] HSAA's proposal for new hires is similar in that it provides a quantitative and

transparent method for placing a new employee on the salary scale and avoids the

possible discrepancies in pay experienced by the current employees of SHS, addressed

in the Enhanced Mediation report: “that the employer does not currently have a grid that

is transparent and that a comparison of wages for the 16 full-time employees reveals no

trends or common principles for recognition of previous experience.”

[247] As well, it should be noted that the Mediator recommended a cautious approach

to the recognition of previous experience language in the agreement with the

understanding that while a standard and transparent approach is necessary, this will be

an increase to the employer in overall total compensation, dependant on how many new

hires the employer plans to hire over the next two years, however, it should also be

noted that HSAA submits that the employer has not met their onus to show that the

panel should recommend anything less for newly hired unionized employees than what

would be provided for current unionized employees.

Panel’s Decision on Recognition of Past Experience

[248] For the same reasons as enunciated above with respect to salaries, we find no

error committed by the Mediator. We are also not persuaded by the Employer’s

arguments surrounding its inability to pay.

[249] The Mediator highlights the disparity in the current salaries paid to each SEMS

employee. First, she notes that Section 3.5.3 of the Policy Manual says “Salary will

77

depend on previous experience …”. She also notes that employee wages vary

considerably with little rhyme nor reason for what one employee is paid versus another

with the same skill set. Employees with less service with the Employer are paid more

than employees with more service. There is no pattern demonstrated that links previous

service with salary.

[250] While both parties agree that including past experience in assessing placement

on the salary grid will increase salary costs for the Employer, there is also no doubt it

will also provide a needed quantitative and transparent method for placing a new

employee on the salary scale. It is also a common recruitment tool in the industry. It

avoids the possible discrepancies in pay experienced by the current employees of SHS.

Far from being unreasonable and an error, it is a reasonable and understandable

recommendation that is significantly persuasive. The Employer has not met its onus that

its position is more persuasive than the Mediator’s recommendation.

[251] We include both Article 28 and Letter of Understanding #3 as crafted.

K.

LETTER OF UNDERSTANDING #5: FLEXIBLE SPENDING ACCOUNT

[252] The last item in dispute is that contained within Letter of Understanding #5

containing a benefit called the Flexible Spending Account (referred to as an FSA). The

issue here is both the cost to the Employer, but also a discrepancy between what the

Mediator recommended versus her rationale. The Mediator recommended that an FSA

be incorporated into the Collective Agreement effective April 1, 2022 payable annually

on April 1^stin the sum of $2,860. This is the same amount as proposed by HSAA.

However, in detailing her reasons for incorporating this amount, and after noting the

Employer already reimburses employees for their professional fees and reviews

comparator agreements, the Mediator indicates an FSA in the amount of $500 (rather

than the $2,860) should be included in the Collective Agreement. Unlike the comparator

agreements referred to by the Mediator, the Mediator’s Recommendation does not

indicate that an employee’s professional fees and licenses are to come out of this

amount.

Mediator’s Recommendation:

RE: Flexible Spending Account

(a) Effective April 1, 2022, a Flexible Spending Account shall be implemented for all

Employees eligible for benefits in accordance with Article 33.

(b) Annually on April 1^st, the sum of two thousand eight hundred and sixty dollars

($2,860.00) per each regular full-time Employee shall be allocated by the Employer

to a Flexible Spending Account.

78

(c) Any unused allocation in an Employee's Flexible Spending Account as of March 31^st

of each year shall not be carried forward to the next calendar year.

(d) The Flexible Spending Account may be utilized by Employees for their spouses and

dependents for the purposes of receiving reimbursement for health and dental

expenses that are eligible medical expenses in accordance with the Income Tax Act

and are not covered by the benefit plans specified in Article 33. It may also be utilized

for reimbursement for expenses associated with professional development (tuition

costs or course registration fees, travel costs associated with course attendance,

professional journals, books, publications hardware or software), and wellness

expenses (which may include, but are not limited to, such expenditures as fitness

centre memberships and fitness equipment).

(e) Where the Employer chooses to contract with an insurer for the administration of the

Flexible Spending Account, the administration of the Account shall be subject to and

governed by the terms and conditions of the applicable contract.

(f) The Flexible Spending Account shall be implemented and administered in accordance

with the Income Tax Act and applicable Regulations in effect at the time of

implementation and during the course of operation of the Flexible Spending Account.

(g) In special situations, the employer will expedite reimbursement of expenses incurred,

in order to assist an employee to pay for eligible items or service. This would require

the production of satisfactory proof of the purchase and costs incurred for verification

of the expense, on an individual basis.

(Emphasis added)

Mediator’s Rationale:

On the matter of the flexible spending account (FSA), this is a benefit the

Employer does not currently provide. However, the Employer does reimburse all

employees for their annual Alberta College of Paramedics registration fee, CPR

Level-HCP Certification, and Driver’s Licence renewal plus Advanced Cardiac

Life Support Certification for Advanced Care Paramedics (see para 7 of the

individual employment contracts). These are often expenses covered within a

flexible spending account.

Most of the comparator agreements contain an FSA in a letter of understanding.

The comparator agreements contain a variety of provisions on an FSA

summarized as:

• Prairie Agreement - $2860.00 which also covers professional registration and

fees and a mandatory deposit of any outstanding balance to the group pension

plan

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• Wheatland Agreement - $2750.00 which also covers professional registration and

fees and no mandatory deposit of any outstanding balance to the group pension

plan

• Cold Lake Agreement - $500.00 effective January 1, 2021 which also covers

professional registration and fees and no mandatory deposit of any outstanding

balance to the group pension plan

• Bonnyville Agreement – none

• Stettler Agreement - $2750.00 which also covers professional registration and

fees and no mandatory deposit of any outstanding balance to the group pension

plan

• Whitecourt Agreement - $2600.00 in a taxable spending account with no

separate coverage from professional registration and fees

• East Central Agreement - $1000.00 and the Employer separately reimburses the

employee for professional registration and fees, required vaccinations, and the

medical fees to maintain their driver’s license.

I recommend clause 33.08 be moved into a Letter of Understanding which

becomes effective April 1, 2022 at the amount of $500.00. I recommend an April

1, 2022 implementation date to give the Employer an opportunity to prepare for

the costs and to set up the plan. I delete clause 33.08(c) because the Employer

does not employ part-time employees and the current benefit plan states

temporary employees are not eligible. I delete clause 33.08(h) because the

comparable first contract, the Cold Lake Agreement, does not contain such a

provision.

(Emphasis added)

Positions of the Parties:

[253] The Employer opposes the introduction of a Flexible Spending Account. This is

another significant cost to the Employer. The Employer already provides for payment of

various registration and licensing fees. SHS’s concern relates to the amount of the new

FSA, and its ability to pay for this in the context of other cost increases under the

Collective Agreement. The Mediator’s Report (at pages 30 to 32) indicates there was

fairly detailed discussion at enhanced mediation regarding the issue of employment

benefits, including the FSA. As indicated above, the Mediator’s Report also mentions on

numerous occasions the concerns expressed by SHS at enhanced mediation regarding

increased costs under the Collective Agreement and its ability to pay.

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[254] The Employer notes the discrepancy between the Mediator’s Recommendation

and her rationale and submits that this inconsistency should be resolved by the

Arbitration Board in favor of the lower amount, for the following reasons:

(i) the Mediator’s Report is where the Mediator expresses most fully her

thoughts regarding the FSA;

(ii) the Mediator states that the FSA “is a benefit the employer does not currently

provide”, and then proceeds to look at other comparable collective agreements,

including the Cold Lake Agreement, which was the only first contract agreement

considered in the Mediator’s Report and includes a $500 per year FSA; and

(iii) the Mediator then goes on to recommend a $500 FSA and states at the

end of that paragraph that the Cold Lake Agreement is “the comparable

first contract”.

[255] Based on the foregoing, SHS submits the most reasonable conclusion is that the

Mediator intended to recommend a $500 FSA in LOU #5, and that the reference to

HSAA’s original proposal of $2,860 was in error.

[256] In the alternative, if the arbitration panel concludes that the reference to $2,860 in

LOU #5 was not made in error, SHS submits this recommendation is rebuttable and not

persuasive or, with due respect to the Mediator, unreasonable, taking into consideration

the comments above regarding the Cold Lake Agreement, and in particular the

statement by the Mediator that the Cold Lake Agreement (which includes a $500 FSA)

is "the comparable first contract".

[257] HSAA argues that the Employer has misinterpreted the recommendations and

that the Mediator specifically referenced that the new FSA would be implemented as

written in the recommended agreement. HSAA submits that in the alternative, if the

panel is persuaded by the Employer’s assessment of the Mediator’s intent, HSAA

submits that implementation of the FSA at $500.00 in April 1, 2022 and then annually on

April 1st, the FSA will increase to $2,860.00 per each regular full-time employee would

be the appropriate interpretation of the recommendations.

Panel’s Decision on Letter of Understanding #5: Flexible Spending Account

[258] We agree with the Employer that there is a discrepancy between the Mediator’s

recommendation and her rationale for making the recommendation. In the Mediator’s

rationale, she reviews the other comparable collective agreements specifically noting

the Cold Lake agreement as the comparable first contract. The Cold Lake agreement

provides for a flexible spending account in the amount of $500 which is the same

amount she indicates she recommends in the Letter of Understanding. She makes no

reference to HSAA’s proposal of $2,860 in her rationale nor does she explain why she

incorporates this into her recommendation. The amount of $2,860 is only reflected in the

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Prairie agreement which is the highest of all of the agreements reviewed by the

Mediator.

[259] Having regard to the Mediator’s reference to the Cold Lake agreement in support

of her recommendation, and noting this is a first collective agreement between the

parties, we find it appropriate to include a Fixed Spending Account but believe the

amount of the FSA should reflect the first agreement comparable used by the Mediator

as opposed to the amount sought by HSAA. We believe the Mediator’s recommended

amount was inserted in error, and, even if it wasn’t, the $500 FSA in the rationale is

much more supportable in the circumstances than $2,860.

[260] We hereby find Letter of Understanding #5 should be amended to change the

amount of the annual payment of the FSA to $500 from $2,860. We do not believe it is

appropriate to increase the FSA over the course of the Collective Agreement, especially

given it is already in the last year of the agreement now. The parties will be at liberty to

discuss this in the next or future rounds of collective bargaining.

XV. SUMMARY AND CONCLUSION

[261] In summary, the Arbitration Board resolves the remaining issues in dispute as

follows. All other provisions set out in the Enhanced Mediator’s Recommendation shall

remain:

• Article 4.05 is amended as follows:

4.05 Any duly accredited Officer employed by the Union may be permitted on the

Employer’s premises for the purpose of transacting Union business with

reasonable notice to the Employer, and the Employer will make all reasonable

efforts to obtain and provide a permit to the Union to do so, on a yearly

or case-by-case basis. Where the permit is provided annually, the Employer will

be solely responsible for making all reasonable efforts to ensure that the permit is

renewed and provided to the Union no later than January 15 of each year.

• We find in favour of maintaining the Mediator’s recommendations in relation to

Article 12.01(a) and (b).

• We find in favour of maintaining the Mediator’s recommendations with respect to

the Employer’s obligation surrounding the seven-day notice of schedule changes

as recommended by the Mediator in Article 12.06(b).

• The drafting error which exists in the Enhanced Mediator’s Report for Article

12.06(c) is hereby amended as follows:

12.06(c) Unless otherwise agreed between the Employee and the Employer,

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unless an employee is given at least seven (7) calendar days' notice of a change

of scheduled days off, he shall be paid at one- and one-half times (1.5X) his

basic rate of pay for all hours worked on such day(s) unless such change is at

the employee's request.

• Article 17.01(a)(ii) is hereby amended as follows: Reference to “twenty-eight (28)

calendar days” is deleted and “fourteen (14) calendar days” is substituted.

• We find in favour of maintaining the Mediator’s recommendations in relation to

Article 21.08(a)(i).

• Article 25.07 is hereby amended as follows:

25.07 The procedures stated in Articles 25.04. 25.05, 25.06, and 25.10

do not prevent immediate suspension or dismissal for just cause.

• We find in favour of maintaining the Mediator’s recommendations in relation to

Article 25.10.

• Article 27.05 is hereby amended to read “Payroll schedule is on a bi-weekly basis

for all employees”.

• The parties also indicated the payroll schedule is referred to elsewhere in the

recommendations (specifically Article 17) but our review could not find another

reference. However, for certainty, if it is mentioned elsewhere in the

recommendations that employees are paid on a bi-monthly basis, we find this to

be in error. Rather, as per SHS’s standard practice, all employees are paid on a

bi-weekly basis and this should be reflected in the Collective Agreement.

• We find in favour of maintaining the Mediator’s recommendations in relation to

the salary appendix.

• We find in favour of maintaining the Mediator’s recommendations in relation to

retroactivity.

• We include both Article 28 and Letter of Understanding #3 as crafted by the

Mediator.

• Letter of Understanding #5 should be amended to change the amount of the

annual payment of the FSA to $500 from $2,860.

[262] The parties are directed to compile and execute the Collective Agreement in

accordance with the determinations of the Arbitration Board. The Arbitration Board

reserves jurisdiction to clarify any matters in this Interest Arbitration Award as may be

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necessary and we reserve jurisdiction to address any issues arising from the

implementation of the directions in this Interest Arbitration Award.

[263] The Arbitration Board thanks the parties and their counsel for their

comprehensive and helpful submissions.

[264] Trina Avey, the Union’s nominee, concurs in whole with the Interest Arbitration

Award. Deb Milimaka Miles, the Employer’s nominee, dissents in part with the Interest

Arbitration Award. Her Dissent is attached.

Dated this 4^thday of May, 2022

Mark L. Asbell, Q.C.

Chairperson

XVI. ADDENDUM

[265] As noted at footnote 20 within paragraph [217], previous drafts of this Award sent

to the Arbitration Board for review and comment inadvertently indicated at paragraphs

[217] and [220] that the Employer offered an increase of 5% of its current salary as

opposed to a reduction of 5% from that proposed by the Mediator. The Chair of this

Panel gratefully thanks the Employer’s nominee for catching this error in her dissent.

After receipt of the dissent, and further discussion with the Arbitration Board, it has been

corrected with consent of the Board in this final version. Similarly, some phraseology

used in previous drafts has likewise been amended with the consent of the Board. The

Dissent has not been amended to reflect these changes out of concern to issue this

final Award in a timely fashion.

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Employer Nominee, Deb Milimaka Miles (dissenting in part)

I. INTRODUCTION and KEY DISSENT FINDINGS

1. This dissent deals with the Majority Award not altering the Enhanced Mediator’s

Directive on the Salary Grid and the Retroactivity, which the Majority could have

done under the Majority’s interpretation of the following: the Labour Relations

Code, BC and Alberta case law and the other arbitration awards relied upon.

2. It appears that arbitrators in Alberta, in the wake our Province’s relevant

legislative changes, have looked west to our neighbour British Columbia and the

BCLRB’s approach set out in its Yarrow Lodge decision, modified by its decision

Hudson’s Bay ²⁴regarding the deference to be accorded in first contract

arbitration. There are also relevant statutory differences between the two

Province’s respective labour statutes²⁵.

3. To date, in Alberta, it appears there may be two competing interest arbitration

26

awards: Rocky Ridge

and Elbow Grease ²⁷. In brief, Elbow Grease is

28

described in the above Majority Award as a “very deferential approach” . The

Rocky Ridge Award disagreed with the union advocated standard of an

“extremely deferential approach”²⁹. The Majority in this Award adopted Rocky

Ridge however it did so “with some amendments” regarding the level of

30

deference to be accorded .

4. In addition to relying on the evidence before the Board (submissions and

testimony), the Chair used his experience to edify the Nominees and inform

parts of the Majority Award.

5. Covid’s impact set out by SHS is best understood in the context of the well

documented history of diseases that ravaged the First Nations starting in at least

the 1800’s including the Siksika people.

6. For the Employer Nominee, the testimony of the Employer’s CFO and COO

Vicki Yellow Old Woman demonstrated the right priorities with respect to Covid

²⁴See the Majority’s Award para. 104.

²⁵See, for example, the Majority’s Awardpara. 113

²⁶AUPE v Signature Living (Rocky Ridge) Management Ltd, 2021 CanLii 7104 (Arbitrator

Casey) issued February 2, 2021.

²⁷UFCW Local 401 v Elbow Grease Management Ltd. (Unreported November 30, 2020)

(Arbitrator Norrie).

²⁸See the Majority’s Award para. 107.

²⁹See the Majority’s Award para. 111.

³⁰See the Majority’s Award para.101.

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versus the events that took place in this matter after the June 2020 leave denial

by the Supreme Court of Canada.

7. While many, if not most Canadians would say Covid had a serious impact

overall, the ALRB and the Majority Award, respectively, did not and are not

demonstrating the correct and reasonable appreciation for the heightened fear

that Covid represented to many if not most or even all First Nations – including

Siksika’s leaders and those of the Employer. That fear, given its historical

context, meant different “priorities” – lives and the quality of lives were at stake

for about two years from early 2020 until late 2021. Siksika were not alone

amongst First Nations in taking a more stringent approach to Covid that non-

First Nations Municipal and Provincial authorities across Canada, as well as the

Federal Government. Their dedicated website is:

https://siksikahealth.com/covid/

8. The ALRB, echoed in the Majority Award, both demonstrated no sensitivity to

the contextual reality and related decisions of Siksika leaders regarding Covid.

Instead, it appears that their Covid focus on saving lives and the protecting the

quality of lives was both patronized and used against the Employer as a means

to reach their respective findings that enabled their decisions and the Majority

Award which are very harsh.

9. This Dissent (in part) sets out below, from scholarly texts, the historical context

that more than justifies the wise decisions of SHS leaders to save lives above all

and to reduce the negative impact for Nation Members with COVID including the

objective of working diligently to reduce the numbers who got Covid because of

long Covid and reducing the spreading of this life-threatening disease.

10. Across our Province and across this country almost every labour arbitrator,

tribunals of various types and the many courts, up to the first appellate levels are

standing by all manner of government, employer and union decisions, actions

and mandates regarding masks, lockdowns, vaccine mandates, travel limitations

and the ultimate weapons: the termination of employment for cause and it

appears the denial of Employment Insurance to the unvaccinated who are

terminated. In the Province of BC there is not even recognition of the vaccine

manufacturer and Health Canada acknowledgment that some people are in fact

allergic to any or even all vaccines. This means that such people were denied

access to a range of public and private buildings. Some Unions declined to

grieve on behalf of terminated bargaining unit members. Millions of medical

procedures, including surgeries, were cancelled in this country in order to enable

health service providers to focus be able to focus on Covid. You will not see any

86

recognition of this in the ALRB decisions nor the Majority Award. This is a

startling divergence from reality.

11. The best way to convey the finding and view of the Majority Award is to quote its

related section title: “Pandemic no excuse to breach legal responsibilities”. And

these words from paragraph 204 of the Majority’s Award: “However, the

existence of the pandemic and the needed response to address its

consequences does not negate the responsibility to follow the law in whatever

form the law takes.” These words stand in stark contrast to what has gone on

across the country. Many across the country have seen what the law was,

changed. The Charter Rights they thought they had, changed. A Prime Minister

who said there would never ben vaccine mandates because of the Charter’s

Religious rights, because of people who could not take the vaccine, within

months heard very different words. The First Nations Covid context, including

Siksika given the factual history of the impact of diseases that link to Covid, a

truly unprecedented global pandemic and related response. The correct and

reasonable response was to not make this inappropriate finding about Siksika’s

and the Employer Covid priority. There over one century long quest for justice

continues.

12. Tribunals and courts, up to the Supreme Court of Canada, have been involved in

decades of litigation with the Siksika Nation and other First Nations seeking to

move from harshly treated and subjugated peoples, through reconciliation and

restoration to a stated vision and achievement of mutual “Nation to Nation”

status and beyond. While there have been many tribunal and court losses for

First Nations the Supreme Court of Canada ultimately changed the course of

First Nations jurisprudence, with Sparrow ³¹in 1990. However, consistent with

more than one century of steps backwards, forwards and backwards . . . the

Supreme Court pulled back and narrowed Sparrow via, for example, Gladstone

32

.

13. First Nations have been repeatedly told they were wrong, lost before tribunals

and courts to later win and make progress. Governments have used, as they

may also do on non-First Nations matters, the many available methods in our

legal system of delay - meaning First Nations cases can and have take a long

time.

14. Siksika, long in pursuit of justice and of “Nation to Nation” self-government, did

so with Alberta Premier Ralph Klein in 1993, however, what became of that

MOU appears to be unclear. More recently there was a 2021 Siksika-Federal

³¹[1990] 1 SCR 1075

³²[1996] 2 SCR 723

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MOU (see Sections III and IV of this Dissent). The Nisga’a in BC ended up with

Federal and BC statutes that set out parameters for what self-government was

to start to mean for them specifically.

15. Challenging the constitutionality of the applicability of the Labour Relations Act

and the Alberta Labour Relations Board, in my view, fit within this evolving

context. The actions were entirely consistent with the documented efforts back

to the great Siksika leader, Chief Crowfoot who led the Blackfoot and Blackfeet

in the Treaty 7 process in the late 1870’s. It appears that there were no adverse

findings by the Courts that properly heard those constitutional matters in their

written decisions that followed. However, the labour relations experts, the ALRB

and the Majority Award, in my view, are devoid of even acknowledgment, let

alone respect for the reality of what has happened and continues to happen to

First Nations including Siksika – as they did to the Employer with respect to

Covid. It appears to this Employer Nominee that there was an undercurrent of

seeing the constitutional challenges and related Stay Applications as delay

tactics.

16. Seeking Constitutional clarity and consistency matters to Siksika as it has

mattered to other First Nations. This is amplified by the self government trends

that the Supreme Court of Canada has enabled. There is the additional reality

of the United Nations Declaration on the Rights of Indigenous Peoples, thus the

role of international law which the Supreme Court of Canada has sometimes

recognized and applied to its decisions impacting Canada. This jurisprudence

is in addition to the past, present and certain future negotiations involving First

Nations, Provincial Governments and the Federal Government and possibly

extra-territorial international bodies.

17. Our Wagner model of labour relations and labour law, both statutory and in the

common and civil law in all eleven to fourteen labour law jurisdictions across

Canada is a conflict model. Our Alberta statute essentially sets out how

industrial war and peace are to operate. The ALRB and Arbitrators are the

adjudicators of industrial war and peace. They make rulings as well as work to

get parties to end litigation, or to make a deal that ends litigation; to give up or to

find mutual peace with respect to any given matter or point of conflict. The

European model of labour relations is quite different. First Nations restoration

and reconciliation traditions, the Healing Circles are different than the Wagner

traditions that have been around for less time. In addition, our application of our

labour statutes tends to be dominated by the two powerful institutional parties –

the union and the employer, with employees not in that same realm.

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18. First Nations operate under a different justice paradigm, one of reconciliation

and restoration. That is not the British common law, nor French civil law

traditions that inform our English Provinces and Quebec, our sole civil law

Province. The tone of the ALRB decisions and the Award, in my view, do not

appear to demonstrate these relevant realities. Instead, the tone was

sometimes aggressive and attacking because under Canada’s Wagner Model

labour relations and labour law traditions that is what is typically said about

whichever of the parties is found to be in the wrong. What has happened is the

opposite or antithesis of First Nations traditions of restoration and reconciliation.

19. This Nominee was on an Arbitration Board for the first time. Both of the other

Arbitration Board Members were very engaging to work with and made a

stretching experience much more comfortable. Trina Avey, the HSAA Nominee

had prior experience, including with writing dissents and kindly affirmed how I

felt. Arbitration Board Chair Mark Asbell has many accomplishments in his

storied and continuing career. As the Arbitration Board Chair he brought his

over two decades of ALRB Vice Chair and Chair experience (over 17 years) to

assist both Nominees and to inform the Award.

20. This Nominee endeavoured to thoroughly understand, read the draft Award very

closely in order to provide input and to write this Dissent to be properly included

with the Award document itself. I have worked diligently to be accurate, correct

and reasonable in my research into the history of the Siksika, other First

Nations, the common law of deference, the standard of review and so on. My

decades of human resources and labour relations experience were augmented

by related labour law research, a close reading of the applicable ALRB, Queen’s

Bench, and Court of Appeal decisions as well as the submissions of the Parties

and my notes from the testimony of the witnesses. My reading of cases

suggests that dissenters are to clearly convey themselves when being critical

and challenging of the Majority Award as a document when unanimity was not

the outcome of the proceeding. In doing so I trust that my words in this Dissent

will be taken in that spirit by Trina and Mark whom I appreciate so very much.

II. SIKSIKA AND FIRST NATIONS HISTORY, COVID AND

CONSTITUTIONAL LITIGATION

21. It is indisputable that the history of Siksika and other First Nations has tragic

elements that are undeniably relevant to this entire matter and, in particular, to

the Majority Award and this ‘in part’ Dissent.

22. There is relevance to the Covid related decisions taken by Siksika Health

Services and how those decisions appear to have been, in part, held against

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them under Alberta’s war and peace Wagner labour law scheme as applied by

the ALRB and the Courts to date.

23. There is also relevance to the constitutional jurisdiction challenges that the

Employer hoped but failed to achieve in their favour, the Siksika Nation and that

of other First Nations going forward.

24. With a view to reducing length and avoiding repetition, this Dissent sets out key

events and that underpin this Dissent in the two areas: the Salary Grid and the

Retroactivity and the parts of the Majority Award – the statements, findings,

analysis related to these 2 specific items.

25. Books and papers published over the decades looked back at official reports,

Hansard from the Federal House of Commons, media items and other resources

in setting out the difficult history of diseases, arguably prior pandemics such as

smallpox, tuberculosis, scarlet fever, measles, whooping cough, influenza, and

pneumonia that devasted many First Nations populations as well as the political

machinations that ranged from manipulation to reconciliation and restoration to

rationing of resources back to manipulation and subjugation to varying degrees.

Think of the Residential Schools. The population of Siksika was estimated to

have reached approximately 18,000 in the 18th century but was decimated by

34

the harsh reality of diseases from abraod ³³and today stands at about 7,800.

26. In the 19th century, the rising influence of external settlers who destroyed the

bison herds, removing the Siksika’s traditional means of subsistence. Famine

and disease spread rapidly. Governments moved to solutions such as making

treaties and establishing reserves that were stated to guarantee protection of

35

land, peoples and resources.

27. From Treaties to Reserves The Federal Government and Native Peoples of

Territorial Alberta 1870 to 190536 by D.J. Hall covers a number of First Nations

including the Siksika and their leadership role in the signing of Treaty 7 by Chief

Crowfoot in 1877 on the lands of the Siksika.

28. Sadly, Chapter 7 is titled: “A National Crime”? The Problem of Indian Health:

³³https://www.thecanadianencyclopedia.ca/en/article/blackfoot-siksika

³⁴https://siksikanation.com/about/.

³⁵https://www.thecanadianencyclopedia.ca/en/article/blackfoot-siksika

³⁶By D.J. Hall, published by McGill-Queen’s University Press -

https://www.canadashistory.ca/explore/books/from-treaties-to-reserves.

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In October 1903, Indian Commissioner David Laird drew the government's

attention to disturbing mortality rates among the treaty Indians of

western Canada . . . "In short, the mortality is so great in some of the

principal bands ... that, in spite of the fact that the birth-rate among our

Indians is generally greater than that of the average European countries,

which is about 3.60 per cent, if it continues, their bands must at no distant

day become nearly extinct." . . . and the Siksika reserve, with a 3.80 birth

rate, had sixty-six more deaths than births.³⁷(emphasis added)

It is against this historical context that is partly set out above, and continues below that

is the only appropriate basis for ALRB and Majority Award judgement to be pronounced

on the Siksika and the Employer who was on the front-line of the latest of too many

devastating diseases. Once again, the inability or unwillingness to walk in their shoes

appears to have been the basis for findings and decisions that fly in the face of the

Covid reality and its context for Siksika. That the ALRB, Alberta arbitrators, the police,

the courts of Alberta, the Governments of Alberta and Canada have already come down

harshly against the unvaccinated in order, they stated to prevent infection,

hospitalization and death is so clearly incorrect and not reasonable with respect to

Siksika and the Employer.

29. The D.J. Hall book also cited a troubling alternate past perspective:

Deputy Superintendent General Frank Pedley could muster little sympathy.

He offered a then-popular social Darwinist analysis: many Indians had not

adapted to the reserve environment, "the process of selection under the

law of 'survival of the fittest' seems to be still in operation," and they

suffered from an "inborn weakness, an idiosyncracy of constitution" that

38

made them especially vulnerable to disease. (emphasis added)

30. However, Pedley was “overruled”:

Such an attitude no longer satisfied the public. Clifford Sifton, the minister

of the Interior and superintendent general of Indian Affairs, facing

politically sensitive health crises in both his immigration and Indian

responsibilities, overruled Pedley, took Laird's concerns to heart, and

decided to try a fresh approach. In 1904, he appointed Dr. Peter Henderson

Bryce as medical officer in his departments. Sifton was responding first to

growing public concern about immigrants carrying disease to Canada, and

second to the shocking reports of high levels of disease and mortality

among Canada's Indians. He directed Bryce to devote about two-thirds of

his time to politically charged immigration-related health problems, and

the remaining third to inspecting reserves. He was to supervise and

³⁷Page 251.

³⁸Page 252.

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improve "the medical attendance and the sanitary arrangements on the

various Indian reserves." The doctors attending the Indians were good,

remarked Sifton, but needed a supervising medical authority. Bryce was a

remarkable appointment. (emphasis added)

In 1922, Bryce published The Story of National Crime: Being an Appeal for Justice to

the Indians of Canada. Clifford Sifton was knighted Sir Clifford Sifton and Sifton,

Manitoba bears his name.

31. The author, D.J. Hall continued:

The government also approached health care and famine relief for Indians

with the same assumptions that hampered its approach to farming and

schooling. In white society, children were seen as refractory potential

adults who had to be disciplined, educated, and encouraged if they were to

become responsible adults. It was far from a perfect system, but it more or

less worked because a social consensus underpinned it. Whites thought

that as wards of the state, Indians similarly needed to be directed and

prodded toward responsible citizenship, but Indians did not agree as to the

methods and ends. There was a disjunction between how policies were

conceived and how they were received. For example, the government

believed that reducing rations would cause Indians to work harder to feed

themselves and their families, as men were expected to do in white

communities. Yet the simple reality was that starving Indians could not

work harder. And there was more to it: the government policy focused on

individuals, playing against Indians' community values. Indian communities

were often demoralized and came to believe that the government owed

them food and clothing in a way that white communities were not and did

not. The story was sometimes similar with ·other health measures: Indians,

with some exceptions, did not improve housing or sanitation at least in part

because demands that they do so came across as critical of their values and

way of life.

Cultural insensitivity seems to have been endemic among politicians and

within the bureaucracy. ³⁹(emphasis added)

. . . . .

While the same diseases affected everyone, the effect was

disproportionately greater among Indian communities. Whites had built up

some resistance to these diseases over hundreds of generations in Europe;

Indians in the Americas had been devastated after white contact by those

same diseases. Undoubtedly, the government tended to be some what

fatalistic, and could and should have done more. Yet Indians did not have

³⁹Pages 254 to 255.

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to be on reserves to contract these diseases: they were afflicted repeatedly

and devastatingly before the treaties even when the bison and other food

sources remained viable. They suffered on the reserves too, no matter

what the government did. As Laird noted in 1903, even improvements in

medical care, diet, housing, and hygiene seemed to make little difference

40

to mortality rates. (emphasis added)

32. In a subsection titles The Origins of Indian Health Policy, Hall delves in the

‘medicine chest’ and the very different views of health of the “Indians” compared

to the “Whites” who dominated the medical profession, political class and

bureaucracy:

Alma Pavel-King contends the Treaty 6 elders believed that the Queen

undertook to "look after them in the manner in which they had looked

after themselves. First Nations' holistic concept and understanding of

health led to a broad interpretation of this agreement." It follows, she

asserts, that there is "a treaty right to health," which by the latter half of

the twentieth century came to mean accessible and available health

benefits and services at the primary, secondary, and tertiary levels. By

contrast, Pavel-King derisively dismisses the federal government's position

(which for decades rejected any such interpretation of the treaties) as

limited to a requirement to provide "the equivalent of a first aid kit." At

best, she argues, even today the government provides health care on the

basis of "humanitarian principles," rather than from recognition of it as a

1

treaty right. 9 She contends that the Indian model of holistic health means

"the physical, emotional, mental and spiritual aspects of a person being in

balance and harmony with each other as well as with the environment and

other beings." The western medical model, by contrast, "has perpetuated

41

the concept of health as being 'the absence of disease’. (emphasis added)

33. Treaties were negotiated with some and Hall explains:

Several of the treaties, including 6 and 7, were negotiated during a serious

economic depression; economy, even parsimony, was the watchword of

the government in every area. Moreover, many whites were envious that

Indians received a level of care not available to most. Sick or injured

Canadians typically paid out of pocket 'for medical care, when available or

affordable - which it often was not in remote towns or rural areas.

Alexander Morris, who negotiated Treaty 6, argued that everywhere in

Canada there were "the poor, the blind and lame," and "the poor whites

⁴⁰Page 255.

⁴¹Pages 257to 258.

93

have as much reason to be helped as the poor Indian; they must be left to

the charity and kind hearts of the people." ⁴²(emphasis added)

34. While a Cabinet Minister, such as Clifford Sifton, took a caring approach and

deployed talent, the pendulum sadly swung away when Superintendent General

David Mills appointed Dr. Daniel Hagarty:

Responding to reports of the almost “superstitious terror: with which

western Indians looked upon smallpox . . . He [Hagarty] was struck not only

by the "dismay" the outbreak occasioned, but by "the expenditure of a very

large amount of money, a considerable proportion of which (in the panic

and excitement attending the visitation) was, it is feared, extravagantly, if

not uselessly expended." This illustrates perfectly the government's

reactive and penny-pinching approach to a health crisis. Mills was moved

by the "harrowing" stories of the tragic impact of this illness on the Indian

population, but he was even more moved by the desire to control future

expenditure. Hagarty, he said, was appointed "to protect the Indians

hereafter against the ravages of this disease, and to prevent the large

expenditure entailed upon the country by its periodic visitations, not to

mention the loss occasioned by the interruption of the Indian trade."

However, having a permanent medical officer to supervise administration

of health measures among Indians, and implementation of public health

measures, was not on the horizon for any Canadian government in the

43

1870s . . . . (emphasis added)

35. SHS’s history can be traced back, for example:

In 1880, Norman Macleod, Indian agent for Treaty 7, observed that the

lack of medical help was "much felt amongst the Indians, as it is only in

the neighborhood of the police posts that they can obtain any assistance,

and being now settled on their reservations they cannot even have this.

There are 'many serious cases which might be cured, or greatly

alleviated, if advice was at hand to which they could have recourse.

Pulmonary complaints and affections of the bowels are prevalent."

NWMP officials contended the same year that "a hospital or infirmary"

should be established on reserves, but little notice was taken of the

44

recommendation. (emphasis added)

36. Hall goes on to look at the reality of death from these diseases, what we would

now call pandemics:

⁴²Page 259.

⁴³Page 261.

⁴⁴Page 262.

94

In contrast with the Treaty 6 bands, those in Treaty 7 suffered more

dramatic population losses. In 1889, the Treaty 7 population fell by 160 (3.2

per cent), to 4,893 . . . On the Siksika reserve, "the missionaries have been

doing their utmost in attending to sick Indians," Lindsay visited monthly

45

from Calgary, and 240 Indians were vaccinated for smallpox. (emphasis

added)

37. Hall also looks at differential funding:

The Kainai reserve in 1905 had a population of 1,204 and reported no

epidemic diseases and generally "satisfactory" health. There was a

Roman Catholic hospital, established and staffed by the Grey Nuns in

1893 and intended to serve the Piikani and Siksika reserves as well,

which admitted 275 patients in 1904-05. The government contributed

$2,500 toward construction costs, along with a small subvention for

furnishings. Later, it paid the nuns' salaries and covered operating costs,

which was more generous support than that offered to the hospital on

46

the Siksika reserve. (emphasis added)

38. Another helpful book was: Clearing the Plains: Disease, Politics of Starvation,

and the Loss of Aboriginal Life, a 2013 book by Canadian scholar James

Daschuk. This book took an epidemiological approach to document the historical

roots of modern health disparities between Canadians and Indigenous peoples.

Communities protected from the contagion augmented their territory in

the aftermath of the outbreak. The Plains Cree and Saulteaux, vaccinated in

large numbers, expanded their territory after 1837–38. The opposite was

true for the Assiniboine and Niitsitapi, who did not have the opportunity to

be vaccinated and suffered high mortality rates. Because of the high death

toll among members of the Niitsitapi, as many as 6,000 individuals, groups

such as the Siksika retreated from their northern frontier along the Battle

River to what became their reserve at Blackfoot Crossing on the Bow River.

In 1841, Simpson reported that the Siksika “have been reduced by one half

47

of late years by Small Pox and other causes.” (emphasis added)

39. In 1877, Isapo-muxika (Crowfoot), the legendary peace-brokering leader of the

Siksika, signed Treaty 7 along with several other First Nations. They were forced

to occupy a reserve at Blackfoot Crossing, east of Calgary.

⁴⁵Page 266.

⁴⁶Page 267.

⁴⁷See page 68.

95

40. The Siksika Nation has made several claims for land and other First Nations

rights, including the right to self-determination and self-government, with varying

degrees of success. The Siksika Nation administers traditionally focused schools

and health and wellness facilities, as well as social programs and departments

for land management and resource development. They have been in the courts

and negotiations for the illegal 1910 transfer of reserve land by Canada to the

CP Railway for example. The extended nature of such cases is reflected in the

Castle Mountain land claim, which began in 1960.⁴⁸

41. Reserves may have put an end to intertribal warfare but they also hammered

traditional ways of life. The Blackfoot Confederacy struggled to survive on

reserves without the ability to hunt bison. Historians commonly refer to the winter

of 1883–84 as the “starvation winter” because of the widespread hunger that

plagued the confederacy that season.

42. Facing pressure from the Federal Government and developers:

In 1910 the Siksika surrendered a significant portion of their reserve for

sale. The money they received in return was held in trust by the

government, who administered the construction of new homes and

agricultural equipment, regular interest payments, rations and other

services. However, the agreement was not advantageous for the Siksika.

They demonstrated in 1930 that retaining possession for economic use

would be more profitable than interest payments on money held in trust.

As these arrangements became obsolete, the Siksika continued to advocate

for autonomy, self-government and fair treatment from the government.⁴⁹

(emphasis added)

III. SIKSIKA AND ALBERTA SIGN SELF-GOVERNMENT MOU

43. In 1993 Chief Strator Crowfoot, of the Siksika First Nation and Premier Ralph

50

Klein signed an Agreement that was described as follows in a media item :

Native and provincial leaders in Alberta took a major step toward

establishing Indian self-government through recognition of First Nations

holding sovereign powers.

Chief Strator Crowfoot, of the Siksika First Nation signed a Memorandum of

Understanding (MOU) with Premier Ralph Klein to provide a framework for

the eventual transfer of control over welfare, education and health care to

⁴⁸https://www.thecanadianencyclopedia.ca/en/article/blackfoot-siksika

⁴⁹https://www.thecanadianencyclopedia.ca/en/article/blackfoot-siksika

⁵⁰https://ammsa.com/publications/windspeaker/siksika-nation-closer-self-government

96

the Native government. The agreement to negotiate as individual

government is the first of its kind in Alberta.

"This government recognizes the Siksika Nation as a form of government

and this treaty simply says we will negotiate with you and participate with

your government to government," said Klein at the signing.

Siksika First Nations aims to be a fully self-governing nation within 25 years,

said Crowfoot. The reserve is the second largest in Canada, covering 71,000

hectares and counting 4,100 members. The band is currently negotiating a

claim of 6,800 hectares in Banff National Park as traditional hunting

territory. (emphasis added)

What happened with this MOU was not clear when time for Dissent research on this

point reached an end.

IV. Siksika Nation and Canada sign Memorandum of Understanding ⁵¹

44. On August 9, 2021 Nioksskaistamik, Chief Ouray Crowfoot of the Siksika Nation

stated:

We look forward to developing a new fiscal arrangement with Canada. One

that will fulfill the true spirit and intent of the Treaty. One that will address

many issues that have long been underfunded or overlooked. We will be

working together, Nation-to-Nation, to develop mutually acceptable terms

and take measures to obtain a formal negotiation mandate, which will build

a foundation for success for Siksika Nation. (emphasis added)

45. Also on August 9, 2021, The Honourable Carolyn Bennett, M.D., P.C., M.P.

Minister of Crown-Indigenous Relations and Northern Affairs stated:

Today is important for renewing our Treaty relationship with Siksika Nation.

Sincere gratitude and congratulations to Chief Ouray Crowfoot and Council

for your leadership and dedication. This Memorandum of Understanding

sets the stage for discussions focused on advancing Siksika Nation’s right to

self- determination, policing and community safety, language and cultural

retention and education and training. We are proud to work in partnership

to advance Siksika community priorities on their path to self-

determination. (emphasis added)

⁵¹https://siksikanation.com/siksika-nation-and-canada-sign-memorandum-of-understanding/

and:

https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2021/08/siksika-nation-and-

canada-sign-memorandum-of-understanding-to-help-create-a-roadmap-for-renewing-their-

relationship.html

97

46. Their joint release also stated:

Working collaboratively to renew the Nation-to-Nation relationship based

on the affirmation of rights, respect, co-operation and partnership is key to

advancing reconciliation with First Nations in Canada.

The Government of Canada and Siksika Nation have achieved a key

milestone on the path of reconciliation today by signing a Memorandum of

Understanding that will help guide the parties as they move forward

together as Treaty partners to renew their Nation-to-Nation relationship

based on community priorities.

Under this co-developed Memorandum of Understanding, the parties will

work together to explore new ways to advance Siksika Nation’s vision of

greater self- determination for the benefit of their community. The

Memorandum of Understanding outlines the next steps in the process and

topics for exploratory discussions between the parties.

The goal is to work together in a spirit of mutual respect and co-operation

toward practical and forward-looking arrangements to strengthen the

Treaty relationship, implement Siksika Nation’s right to self-determination

and advance Siksika’s vision and priorities. The parties also commit to

working together toward a new fiscal relationship to help promote the

economic, cultural and social well-being of their children, families and

communities. (emphasis added)

The divergence between the statement of the Chief (see para. 43 above) and those of

the Federal Minister (see para. 44 above) and in particular the joint release just above

are telling. It is not at all clear the Federal Government was prepared to provide more

monies for health Care.

While Canada can spend not the original $8.3 million, but now at least $11 million on

the Prime Minister of Canada’s country home ⁵²; while the Prime Minister can provide a

false itinerary to all Canadians while he flies on a private Government jet to walk the

beaches of BC and surf off its coast – on the first National Day of Truth and

Reconciliation ⁵³– we still have First Nations Reserves without safe drinking water – for

too many years running ⁵⁴. Now we are sending money (at least $100 million) ⁵⁵to a

war zone in Europe, one that is not without controversy over the actions of both Russia,

NATO and actors with Ukraine – but the Federal Government cannot clearly announce

more funds for Siksika health care.

⁵²https://www.thestar.com/news/canada/2022/03/24/inside-the-11m-renovations-to-justin-trudeaus-

country-home.html

⁵³https://www.cbc.ca/news/politics/trudeau-tofino-national-day-truth-reconciliation-1.6195591

⁵⁴https://www.cbc.ca/news/politics/auditor-general-reports-2021-1.5927572

⁵⁵https://www.canada.ca/en/global-affairs/news/2022/03/canada-announces-100-million-humanitarian-

assistance-to-ukraine.html

98

V. The EMPLOYER’S SALARY GRID PROPOSAL IN ARBITRATION

47. The Majority Award sets out an Employer Salary Grid Proposal that was made

as part of the Arbitration process as follows:

It is not clear to us how it can continue to operate “as-is”, let alone with the

Employer’s proposed 5% increase to salaries. The numbers indicate SEMS is

in an ongoing and continuous state of being under-funded. Yet, the

evidence we heard was that despite not having the level of funding

necessary to properly fund SEMS, the organization continued

uninterrupted and without any cut-backs of any kind. In fact, the

organization was funding, and did fund, the purchase of two new

ambulances. If it was truly unable to fund itself, as contended, how can it

make such large purchases? And how can it fund and absorb a 5% increase

to salaries and benefits? And if it can absorb an additional 5%, why can’t it

56

absorb the recommended increases by the Mediator

48. Having carefully reviewed the Final Majority Award and gone back to the

Employer’s Submissions, the Employer Nominee believes the Majority Award

does not correctly set out the Employer’s Proposal. Below are the full text of the

Employer submission and in Appendix 1 of this Dissent is the Enhanced

Mediators proposed Salary Grid, annotated by the Employer. At paragraph 98

of the Employers Closing Submission sated January 21, 2022:

Taking all of the above into consideration, SHS submits that the Salary

Appendix should be amended by reducing all of the amounts in the salary grid

by 5%.

49. In Appendix 2 of this Dissent I have added two rows, one for Advanced Care

paramedics (ACPs) and one for Primary Care Paramedics (PCPs) to show the

SHS proposed pay rate for each Step based on reducing the Enhanced

Mediator’s proposed pay rate for each Step.

50. In Appendix 3 I have provided an analysis of the 3 different scenarios.

51. Turning to some of the language used by the Majority Award does not appear to

match the words actually used by the Employer in its Submissions and the testimony

of Employer Witnesses.

52. At paragraph 217 of the Majority’s Award it was stated:

⁵⁶See the Majority’s Award para. 220.

99

Notwithstanding its difficulties, the Employer proposes it could

accommodate an overall increase of 5% However, in making this proposal,

it does not indicate where the money will come from or how the increase

will be funded.

53. And then continuing at paragraph 218: “Therein lies our problem and concern”.

54. The Majority Award used arguably harsh language. The words “impoverished”

and “stagnate”. The Employer’s Submissions and Witnesses never used words

that are close to the definition of the word “impoverished” nor “stagnate”. From

paragraph 219, followed by 221:

The Employer contends it is impoverished as it is a not-for-profit

organization with stagnate funding mechanisms that cannot be adjusted.

The Employer contends it is in a constant deficit position. Indeed, even in

the one year its budgetary records showed it was in a surplus position, it

produced evidence demonstrating that it was actually in a deficit because

of the dedicated Jordan Principle funds.

We are not satisfied the Employer is as impoverished as it contends as it

has continued to operate as if fully funded for years without cut-backs or

down-sizing or any evident impact on its operations. Somehow, either

through the good governance or good graces of Siksika Nation or an

expectation or understanding that the operational deficit of SEMS will be

absorbed or otherwise dealt with by the Nation, SHS and SEMS has simply

been able to carry on with its operations and ignore its funding deficits.

Further, we believe there are other funding sources the Employer has

either not considered or has not fully accessed

Put another way, one could reasonably infer that the Majority may have been of the

view that SHS should have stayed at zero.

The record does not reflect that the Union nor the other Members of the Arbitration

Board sought to probe more deeply, to require further document production, oy way of

an Order via the ALRB if necessary. The Majority Award appears to impugn the

integrity of the Employers evidence with pout undertaking and properly reaching a

credibility finding.

Attributing words never spoken nor written is not appropriate. Not doing more to get to

the bottom of how new ambulances were purchased, how year over year deficits were

actually handled in terms of the realities of cash flow but then to make adverse findings

is not appropriate.

100

VI. RETROACTIVITY

55. The Chair of this Arbitration Board was very transparent in the Majority Award in

that he “truly questioned” what to do abut Retroactivity. 57 The Employer

Nominee was also surprised and did not see coming which led to a substantive

discussion and the words of the Award:

Discussions and negotiations surrounding retroactivity in any collective bargaining is

usually a hard-bargained, highly contentious item in dispute. There is no doubt that

it is a significant cost item for an employer and one which an employer cannot

recover easily through simply increasing what it charges for its services or product.

It is an item that does not usually fit within “the replication model” and the logical

inference is that it is not usually awarded in a first agreement context.

But there are exceptions to everything and this first agreement arbitration cries out

for such an exception. As held by the Labour Relations Board, the Employer here

engaged in bad faith bargaining by adopting an extreme bargaining position. It did

not bargain and did not engage with HSAA even after its constitutional challenge

was dismissed. To deny SEMS employees wage increments that likely would have,

but for the bad faith position adopted by the Employer, been achieved and applied

much earlier, is to reward the Employer for its wrongful actions. This is the

antithesis of good faith bargaining.

As held by Arbitrator Casey in Rocky Ridge at paragraph [46], while interest

arbitrators should be cautious in awarding breakthrough provisions, agreements

should also be sufficiently generous to cause employers to realize it is in their best

interests to negotiate a fair deal directly with the union. We agree with this

statement and add that an award in this circumstance should also disincentivize

employers from engaging in bad faith bargaining.

The majority of this Arbitration Board is satisfied the inclusion of retroactivity as

recommended by the Mediator is appropriate in these circumstances. While we

recognize this is a significant cost factor for the Employer, we cannot condone its

conduct and to not award retroactivity in this circumstance would do just that. As

stated by the Mediator, the Employer was in a position to control its destiny by the

time the Mediator was appointed by the Labour Relations Board. We agree given

that the Employer should have started bargaining in June 2020. The Mediator’s

recommendation that retroactivity go back to September 14, 2020 is

understandable, justifiable, and significantly persuasive. We are satisfied

retroactivity shall apply back to this date.

56. The reality of Covid was disregarded, even rejected by both the Board and the

Majority Award. Instead, as stated at the outset the Wagner tradition was imposed

⁵⁷See Majority’s Award paras. 234 to 237.

101

on a First Nation that did agree to Enhanced Mediation and did in Arbitration agree

to many items which substantially narrowed the items to be addressed in the

inevitable Award. That attempt to reconcile and restore the relationship consistent

with Siksika Nation traditions has not only been summarily rejected, it has, arguably

been called into question by both the ALRB and the Majority Award Members who

live and breathe in that world. This Dissent is a call out for a different approach as

Siksika and Canada seek to work Nation to Nation and whatever premier Klein

intended to do appears to have not materialized – as has happened to Siksika and

First Nations all too often.

VII. COURT OF APPEAL’S USE OF “LOW” AND THE RJR TEST

57. The Majority Award appeared to take issue with Siksika Health Services seeking

and obtaining Stays and the related impact on the employees. The Majority

stated:

“In granting this stay, the Court of Appeal specifically noted the threshold

for establishing an arguable issue is low and that the Union and SEMS

workers have suffered irreparable harm as a result of the stay that has

been in place and would continue to be in place if the appeal was

ultimately dismissed.⁵⁸(emphasis added)

58. A review of stay case law affirms that the presence of the word “low” is simply

and factually a matter of law and proper drafting. It would be inappropriate to

not properly set out the test or the criteria. This word “low” was set out by the

59

Supreme Court of Canada in RJR-MacDonald :

What then are the indicators of "a serious question to be tried"? There are

no specific requirements which must be met in order to satisfy this test.

The threshold is a low one. The judge on the application must make a

preliminary assessment of the merits of the case. . . . Similarly, a decision

by an appellate court to grant leave on the merits indicates that serious

questions are raised, but a refusal of leave in a case which raises the same

issues cannot automatically be taken as an indication of the lack of strength

of the merits.

Once satisfied that the application is neither vexatious nor frivolous, the

motions judge should proceed to consider the second and third tests, even

if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged

⁵⁸See the Majority’s Award para. 30.

⁵⁹RJR-MacDonaldv Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311.

102

examination of the merits is generally neither necessary nor desirable.

(emphasis added)

In addition to the factual reality that “low” is part of the tripartite test, the Supreme Court

also appears to have required a granting court to satisfy itself that “the application was

neither vexatious nor frivolous”.

59. The number of times the word “low” has appeared in tribunal and court decisions

since 1994 numbers easily in the thousands, and likely the actual number is

much, much higher. The Majority appears to give significance to the word “low”.

Respectfully, that was inappropriate; it is demonstrative of incorrect positioning

and analysis on the Wagner model war path that informed key aspects of the

Majority’s Award being herein being dissented from.

60. In the relevant Court of Appeal⁶⁰decision the Court granted the Stay and stated

as follows:

[6]

An application to the judicial review judge for a stay pending the

appeal of her decision was dismissed on December 19, 2018. The judicial

review judge applied the tri-partite RJR-MacDonald v Canada (Attorney

General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 test and concluded that:

1. There was a serious question to be considered on appeal, recognizing

that the threshold was low; (emphasis added)

The Court of Appeal in fact simply stated or ‘recognized’ the precise test as would be

expected, possibly even required of any court, let alone an appellate court. The Court

of Appeal and in no way “specifically noted” the word “low” in any analytically relevant

way at law as the Majority Award appeared to have asserted.

VIII. FULL SCOPE OF ALBERTA COURT OF APPEAL IRREPARABLE

HARM FINDINGS

61. The above quote from the Court of Appeal, regarding the tri-partite RJR test, is

continued below in Dissent paragraph 64. Respectfully, the Majority appears to

have done its analysis, leading to findings in its Award that did not accurately set

out the decision. The Court of Appeal also set out the common ground

regarding the entirely lawful Siksika Health Services constitutional Applications

to the ALRB and all three applicable levels of our Courts.

⁶⁰SiksikaHealth Services v Health Sciences Associationof Alberta, 2019 ABCA 169 – stay application

granted dated May 6, 2019.

103

62. The Majority addressed what it found to be the “irreparable harm” impact of the

Stays on the employees. Repeating the Majority quote from above:

“In granting this stay, the Court of Appeal specifically noted the threshold

for establishing an arguable issue is low and that the Union and SEMS

workers have suffered irreparable harm as a result of the stay that has

been in place and would continue to be in place if the appeal was

ultimately dismissed.⁶¹

However, while granting SHS’s stay application, the Court of Appeal was

very aware that HSAA and the employees had already suffered irreparable

62

harm and would continue to face harm if the stay being granted.

(emphasis added)

63. A careful review of the Court of Appeal decision finds in fact that the Court cited

“irreparable harm” for Siksika Health Services as well.

64. However, the Majority Award did not accurately set out, what the Court of

Appeal clearly found regarding irreparable harm. This necessarily calls into

question the Majority Award’s analysis and findings regarding Siksika Health

Services in not reaching the appropriate conclusions about the Salary Grid and

Retroactivity. The Court of Appeal continued with where the Court of Queen’s

Bench came down on Siksika Health Services’ Stay Application and clearly and

correctly set out the Siksika Health Services’ position:

2.

SHS had not demonstrated irreparable harm. SHS does not take the

position that its Treaty rights preclude unionization, but rather that any

unionization should be under the federal labour code, not provincial

legislation. SHS argued that if it was successful on appeal, it would have to

go back to the table and negotiate with the employees directly, or with the

same or a different union, but under the federal labour umbrella. The

chambers judge concluded that the costs and time associated with

negotiating a collective agreement were financial, and would not constitute

irreparable harm;

3.

The balance of convenience involves a conflict between the alleged

constitutional treaty rights of SHS and the alleged constitutional rights of

the ambulance workers to organize pursuant to section 2 of the Charter of

Rights and Freedoms. If she had to decide the issue, the chambers judge

would have found that the balance favoured maintaining the status quo.

⁶¹See the Majority’s Award para.30.

⁶²See the Majority’s Award para.31.

104

[7]

In the result, the judicial review judge denied SHS’s application for a

stay pending appeal. SHS now applies to this Court for a stay pending its

appeal of the judicial review decision.

1.

Analysis

[8]

The test for a stay pending an appeal is the tri-partite RJR-

MacDonald test, which was applied by the judicial review judge. A stay

pending appeal may be ordered if the applicant establishes that there is an

arguable issue to be determined on appeal, that the applicant will suffer

irreparable harm if the stay is not granted, and that the balance of

convenience favours granting the stay: Canadian Natural Resources Limited

v Arcelormittal Tubular Products Roman SA, 2013 ABCA 357 at para 6, 561

AR 180.

2.

Arguable Issue

[9]

The threshold for establishing an arguable issue on the first branch

of the test is low and has been met in this case.

3.

Irreparable Harm

[10]

SHS is not taking the position that it is not subject to any labour

legislation, but rather that it is subject to the federal rather than the

Alberta labour code. However, SHS submits that the issues on appeal go

beyond which labour code applies. It submits that the sovereignty of Siksika

Nation, its constitutionally protected right to self-government and its treaty

rights will be infringed if SHS is subject to provincial regulation of the

provision of health services in breach of the obligations undertaken by the

Government of Canada in Treaty Number 7. SHS asserts that erosion of

such rights, even if only temporary, constitutes irreparable harm.

[11]

SHS also submits that it will suffer irreparable financial harm if it is

required to implement the Board Decisions and participate in the collective

bargaining process. SHS’s operating budget is limited. The cost of hiring

negotiators and the administrative disruption associated with collective

bargaining will not be recoverable if the appeal is ultimately allowed. That

point is not disputed by the Union.

[12]

I am satisfied that SHS will suffer irreparable harm in both respects

if a stay is not granted and the appeal is ultimately allowed. “‘Irreparable’

refers to the nature of the harm suffered rather than its magnitude. It is

harm which either cannot be quantified in monetary terms or which cannot

be cured, usually because one party cannot collect damages from the

other.”: RJR-MacDonald at para 64.

4.

Balance of Convenience

105

[13]

Both parties acknowledge that this appeal involves competing

constitutional rights: the treaty rights of SHS and of the Siksika Nation

under s 35 of the Constitution Act, 1982, and the rights of the Union and

SHS’s ambulance attendants under s 2 of the Charter.

[14]

The appeal is scheduled to be heard in November 2019. The parties

were operating under a stay from October 26, 2017 until December 19,

2018. To date, the parties have yet to meet to commence the process of

negotiating a collective agreement.

[15]

I am satisfied that both parties face irreparable harm, depending on

whether a stay is granted or denied and whether the appeal is ultimately

dismissed or allowed.

[16]

The Union submits, and I accept, that the Union and the SHS

ambulance workers have suffered irreparable harm as a result of the stay

that has been in place and that this harm will continue if a stay is granted

pending the appeal, and the appeal is ultimately dismissed. The nature of

that harm was described by the Board when it refused the initial request

for a stay (Siksika Heath Services v Health Sciences Association of Alberta,

2017 CanLII 61259 (ABLRB) at para 30. (emphasis added)

The full truth of the Court of Appeal decision is in its paragraph 15, repeated below:

[15]

I am satisfied that both parties face irreparable harm, depending on

whether a stay is granted or denied and whether the appeal is ultimately

dismissed or allowed. (emphasis added)

This adds to the concern informing this Dissent in part regarding what appears to be a

foundational aspect of the Majority Award – only citing the irreparable harm to one vs all

who were so deemed, Further, it appears, maybe even as a principle of this test that

the Court necessarily gave precedence to the harm to the Employer of the harm it found

to the Union and the Employees in order to grant vs deny the Stay. Respectfully, it

appears this analysis was not done correctly or reasonably.

IX. COULD THE CHARTER BE ENGAGED IN THIS MATTER?

65. As an aside the Court of Appeal stated on behalf Siksika Health Services and

the Union:

[13]

Both parties acknowledge that this appeal involves competing

constitutional rights: the treaty rights of SHS and of the Siksika Nation

under s 35 of the Constitution Act, 1982, and the rights of the Union and

SHS’s ambulance attendants under s 2 of the Charter.

Respectfully, this may not be entirely correctly set out by the Court of Appeal on behalf

of the Union. It appears that Siksika Health Services may be an employer entity, under

the Control of another entity (SEMS) which appears to be an entity under the Siksika

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Nation. With no corporate chart and constituting documents one cannot further pursue

the relevant analysis; however, SHS and SEMS are not any level of government in and

of themselves. If true then its actions, its relationship with its employees and the Union

might only be subject to Charter review based on the relatively new area of Charter

Values analysis. To be otherwise Charter reviewable might depend on a finding that the

funding of and decisions made are so government dominated that the actions of SEMS

and SHS actions are Charter reviewable. Others far more expert than this Nominee

may wish to turn themselves to the topic should other Charter matters appear on the

Prairie horizon in the future.

X. CONCLUSION

66. For all the reasons set out above the Employer Nominee would have found that

the Arbitration Board should not have awarded Retroactivity and should have

accepted the Employer’s Salary Grid Proposal made in Arbitration. There was

a true opportunity to see the Employer’s actions through the lenses of disease

history manifested in Covid. There was a restoration and reconciliation

opportunity ignored or even rebuked via the Majority Award with respect to the

Employers Salary Grid Proposal in Arbitration.

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Appendices

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Appendix 1

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Appendix 2

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Appendix 3

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