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.

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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

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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.

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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.

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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

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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

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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)

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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