The United Food and Commercial Workers (UFCW) union won an arbitration case against an Ontario nursing home, but the victory was bittersweet as there was no remedy attached to the ruling.
Now, an Ontario court — which had sympathy for the union and said it would have ruled differently — has refused to overturn the arbitrator’s decision to issue a declaration that the collective agreement had been violated and nothing more in a case with “unique facts and difficult realities.”
The grievance was filed against CVH Birchwood Terrace Nursing Home in Kenora, Ont. The collective agreement with UFCW recognizes it as the bargaining agent for certain categories of employees, including personal support workers (PSWs) and registered practical nurses (RPNs).
Birchwood has, for many years, struggled to recruit and retain an adequate number of PSWs and RPNs. Its efforts to fill positions included taking part in job fairs, partnering with college programs, and negotiating the creation of a temporary bargaining unit position so some PSW duties could be performed by other employees.
The recruitment efforts did not include increasing the wages and benefits of unionized PSWs and RPNs, other than as required as a result of bargaining or arbitral awards.
In 2016, Birchwood entered into an agreement with Gifted Hands Health Services, a temp staffing agency. The agency began assigning PSWs and RPNs to work at Birchwood. These staff performed the same duties, and were subject to the same rules and policies, as union members. They were integrated with the unionized workers and worked interchangeably with them.
Birchwood did not consider the agency workers to be be subject to the collective agreement, so it did not collect union dues from them.
The use of agency employees cost the nursing home “significantly more” than its regular employees. PSWs earned a maximum of $20.57 under the collective agreement; but the agency PSWs were paid $25 per hour. RPNs had a maximum wage of $24.75 under the collective agreement, while RPNs from Gifted Hands were paid $40 per hour.
Plus, Birchwood also covered the cost of the workers’ hotel accommodations in Kenora. The nursing home’s attempts to get these workers to sign on as permanent employees were “uniformly unsuccessful.”
When COVID hit, the Ontario government issued a regulation relaxing the education, certification and regulatory requirements for PSWs and RPNs, allowing long-term care homes such as Birchwood to assign non-unionized staff and to hire temporary workers to perform bargaining unit work.
In September 2020, Birchwood signed on with second staffing agency — Alliance Healthcare Staffing Services. PSWs and RPNs were assigned by the agency, similar to Gifted Hands, to work alongside permanent staff.
As of January 2021, Birchwood had six unionized PSWs and seven unionized RPNs. On average, they worked along four full-time agency workers.
Even with the use of these agency workers, in 2018 and 2020 the Ministry of Long Term Care found that Birchwood had chronic staffing shortages that violated statutory and regulatory requirements, and it ordered the long-term care home to comply with the law.
The arbitrator’s ruling
UFCW argued Birchwood was the real employer of the agency workers, and using non-bargaining unit PSWs and RPNs violated the collective agreement.
The arbitrator mostly agreed. It noted that, among other things:
- Birchwood approved all hours worked and was solely responsible for scheduling them
- Birchwood established rules and procedures and provided them with supplies
- It had exclusive right to determine what work the agency workers did, and supervised and managed day-to-day activities.
It did note that the agencies had some elements of being an employer: They recruited the workers, assigned them to Birchwood, paid their wages and benefits and ensured they had the necessary qualifications and training.
The arbitrator concluded, however, that these circumstances were not determinative of the issue, given “the employment and labour relations functions of the direct and fundamental care, control and supervision that the Home clearly exercises over the agency workers once they are working at the Home, and the fact that the agency workers work side-by-side with the bargaining unit employees, doing the same work that is essential to and integrated into the core business of the Home.”
Therefore, the use of the workers amounted to a contracting-in violation of the collective agreement.
The arbitrator mulled over a range of remedies in this case, including payment of retroactive union dues and damages; a cease and desist order; and an order requiring Birchwood to pay higher wages to bargaining unit employees.
He settled on a declaration that the employer had contracted agency workers in violation of the agreement, and stopped at that point.
He ruled that the performance of bargaining unit work by outside workers, in violation of a collective agreement, does not necessarily impair the integrity of the bargaining unit.
“Based on his review of other arbitral decisions, the Arbitrator found that there must be some evidence that one or more bargaining unit employees have suffered a loss or opportunity, or that they might be laid off,” the court said.
The arbitrator noted that no bargaining unit employees lost any hours as a result, and they all continued to be fully employed.
“If there was any evidence that there was anyone who was willing to be a bargaining unit employee, then it could make sense to make an Order for some union dues that would have been actually lost by the Union,” the arbitrator said. “However, there is no such evidence. Rather, the evidence is that the Home tried to hire employees, including to hire some of the agency workers, but was unable to do so.”
He also declined to order a cease-and-desist order, because it would not solve the problems at Birchwood. Instead, it would exacerbate staffing issues and leave the residents without care.
And, since this was not an interest arbitration, he said he did not have jurisdiction to order the employer to pay higher wages in the hope of attracting PSWs and RPNs to join permanently.
Simply put, this case had “very unique facts and difficult realities” that justified a declaration and no other remedy.
The court’s ruling
The court had “considerable sympathy” for the union’s position. After all, Birchwood had been violating the collective agreement from the time it was signed, it said.
“It claims it has done everything it could to hire more permanent PSWs’ and RPNs, but has not done one obvious thing: offering existing and potential employees higher wages,” it said.
It had “great difficulty” in understanding how the situation at Birchwood has not undermined the bargaining unit, since the message it sends is that it is “far better to be a non-unionized employee.”
But the fact it would have ruled differently does not mean the arbitrator’s decision on remedy should be set aside, it said.
“The Arbitrator clearly understood that something further had to be done but, in his view, there was no other appropriate remedy than a declaration,” it said. “Given his explanation for this conclusion, I cannot find his decision unreasonable.”
It dismissed the union’s application and awarded $6,000 in costs to the employer.
For more information, see UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home, 2023 ONSC 2218 (CanLII)