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IN THE MATTER OF: An Interest Arbitration

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES,
LOCAL 1840

(hereinafter called the “UNION”)

- and -

PROVINCE OF NEW BRUNSWICK

(hereinafter called the “EMPLOYER”)

Appearances: Arbitration Board:

Raymond Legere                    George Vair
Bob Crockett                         Union Nominee.
for the Union.
                                              Neil Russon
                                              Employer Nominee.

Dorine P. Taylor Bruce Outhouse, Q.C.
for the Employer. Chair.

Hearings held at Fredericton, N.B., on March 9th and 10th, 2001.

DATE OF DECISION: June 6th, 2001.

D E C I S I O N

BACKGROUND

1. The Canadian Union of Public Employees, Local 1840 (the “Union”) represents the Court Stenographers bargaining unit. The unit includes all court stenographers in the Province of New Brunswick, of which there are approximately 63.

2. The collective agreement between the Union and the Employer expired on September 30th, 1999. Negotiations to renew the agreement commenced on November 1st, 1999 and were extremely protracted. Despite the assistance of both a conciliation officer and a conciliation board, the parties were unable to reach agreement and a strike commenced on September 25th, 2000. The Labour and Employment Board appointed a mediator in early October, 2000 but the parties were still not able to conclude a collective agreement.

3. Ultimately, on January 30th, 2001, the parties entered into a written agreement to submit their remaining differences to binding arbitration. Pursuant to that agreement, the strike officially ended on January 31st, 2001.

4. The present Board was constituted pursuant to the aforesaid agreement. Its mandate is to settle the disputed terms and conditions of employment between the parties in accordance with Section C of the “Guidelines Pertaining to Arbitrations in New Brunswick Municipalities”. Specifically, the Board is required, in making its decision, to consider only the seven factors set out in Section C, namely:

5. The Board met with the parties on March 9th and 10th, 2001 to receive submissions. Prior thereto, the parties had each filed written briefs and extensive supporting documentation with the Board.

6. While it initially appeared that there were seven outstanding issues for the Board to determine, the parties were able to agree on all but two items - wages and term. Consequently, it falls to the Board to resolve these issues.

7. Ordinarily, the Board’s decision would have been rendered within 30 days as stipulated in the Guidelines. However, due to other commitments of the Chair, an extension of time was requested and the parties consented to same.

CONSIDERATION OF THE FACTORS

Economic Conditions

8. Economic conditions in Canada have been generally favourable since the mid-90’s. However, a recent slowdown in the U.S. has had a negative impact on the Canadian economy and created considerable uncertainty concerning future growth, at least in the short term. Growth in real GDP for New Brunswick was approximately 8.5% for the period from 1995 to 1999. Revised estimates for 2000, according to the Conference Board of Canada Provincial Outlook 2001, place real GDP growth at 3.7% and forecast average real growth at 2.7% between 2000 and 2005. Forecasts issued by the Toronto Dominion Bank, the Bank of Nova Scotia and the Canadian Imperial Bank of Commerce in the fall of 2000 were slightly more optimistic with respect to growth in 2001 and 2002.

9. New Brunswick has had balanced budget legislation since 1993 which has enabled it to reduce its net public debt-to-GDP ratio, which peaked at 39.6% in fiscal 1993-1994. It currently stands at 35.1%, eighth highest among the provinces, better only than Newfoundland and Nova Scotia. However, when unfunded pension liabilities are taken into account, New Brunswick net public debt as a percentage of GDP is also lower than Quebec’s and approximately the same as Saskatchewan’s.

Productivity

10. Statistics Canada defines productivity as “the measure of how much output an economy produces for a specific amount of resources that it devotes to production” and notes that “productivity is important because it largely determines the increase in living standards, as measured by GDP per capita”.

11. Output per hour growth in New Brunswick over the 1989 to 1998 period was sixth highest among the provinces but lagged behind the national average. In 1998, the value added per worker employed was 91.9% of the national average and the value added per person hour was 86.4% of the national average.

Cost of Living

12. The Consumer Price Index (CPI) increases for New Brunswick over the past six years have been as follows:

13. Most forecasts for 2001 are in the range of 3%.

14. The Employer notes that the 2000 and 2001 CPI increases are driven primarily by sharp rises in energy and food costs. The Employer argues that the latter increases are predicted to be of a temporary nature and should not, therefore, be taken into account in determining “core inflation”. The Employer also maintains that it would be appropriate, in assessing the impact of recent CPI increases on disposable income, to offset the savings attributable to recent reductions in federal and provincial income tax. The Employer sees such savings as “other financial resources in the hands of the employee to combat inflation”.

Comparisons With Other Bargaining Units of the Same Employer

15. The parties made two types of comparison with other bargaining units in the New Brunswick public sector. The first relates to the so-called “pattern settlement”. The other involves a job-to-job comparison of the court stenographers with the Administrative Support Group represented by the New Brunswick Public Employees Association.

16. With respect to the pattern settlement, the record discloses that, since the mid-90’s, the Employer has held wage increases in the provincial public sector to 1.5% per annum, usually consisting of a 1% increase at the commencement of the collective agreement followed by a 5% increase 6 months later, repeated annually throughout the life of the contract. The Employer’s wage offer to the Union before, during and after the strike is consistent with the pattern settlement - a 1% increase effective October 1st, 1999 plus a 5% increase 6 months later and so on each year during the term of the contract.

17. In the past couple of years, there have been an increasing number of deviations from the pattern settlement. Among the employees who have received wage increases or adjustments exceeding 1.5% per year are the paramedic group, the pharmacy, mental and physical rehabilitation group, nurse managers, nurses, correction officers and, most recently, hospital workers. In addition, employees in many other groups have effectively received wage increases as the result of classification studies carried out by the Employer using the Hay job evaluation system. The upshot is that court stenographers are among the distinct minority of employees who have not enjoyed some form of wage adjustment over and above the pattern settlement. In the case of the hospital workers, it is worth noting that they received a 4.5% pay equity adjustment plus a general wage increase of 2% per year (1.5% plus .5%) for 4 years. The pay equity adjustment affects approximately 89% of the bargaining unit and is estimated to cost approximately $6,500,000.

18. In terms of internal job comparisons, both parties focused their attention on the Administrative Support Group (ASL series), a bargaining unit consisting of clerical, secretarial and office/data processing positions which provides administrative support services to all provincial government departments, including Justice, and is the logical comparison group with court stenographers.

19. The ASL series consists of progressive classification levels from 1 to 5. Within each classification is found a fairly wide range of jobs. There are 3,000 employees in this group of which 1,000 are ASL 3’s. Education, experience and responsibility requirements vary depending on the specific job, but are generally grouped by level and corresponding pay range. ASL 2’s at the top of the scale earn $14.52 per hour, ASL 3’s $16.61 per hour, ASL 4’s $18.62 per hour and ASL 5’s $21.30 per hour. Currently, the top rate for court stenographers is $15.67 per hour.

20. The court stenographer classification was carved out of the Administrative Support Group for the purpose of bargaining in 1975. In the early 1990’s, the Court Services Division was restructured. As part of the restructure, new service groupings were created. These included Court Attendance Services and Client Services. Court Attendance staff (the court stenographers) attend court proceedings, prepare transcripts, prepare disposition of case documents and other related duties. Client Services staff accept court documents, input data, serve the public and perform other related duties. As a result of the restructure, a number of court stenographers became client services clerks and were reclassified as ASL 3’s. They work side by side in the court system with the court stenographers. The client services clerk is one of many jobs within the ASL 3 classification. Other typical jobs in the class are secretaries, accounting clerks, registrar’s assistant, financial officer and vision claims officer.

21. In the ASL 2 classification, typical jobs involve clerk receptionist duties, filing, basic typing and data entry. Positions in the ASL 4 level are senior secretarial and administrative support. Secretaries to government lawyers, including Crown Prosecutors, are classified as ASL 4. So too are various co-ordinators involved in the delivery of employment, health care and day care programs. The ASL 5 classification entails first line supervision of a work unit. There are relatively few of these positions. In the Department of Justice, the Supervisor of Court Attendance and Client Services is the prime example of an ASL 5 position. There are 6 incumbents throughout the province in this position. They are directly responsible for the supervision of the court stenographers and the client services clerks. At present, all of the Supervisors of Court Attendance and Client Services, with one possible exception, are former court stenographers.

22. The stated educational and experience requirements for court stenographers are quite minimal - high school plus commercial courses and one year of secretarial experience. Educational and experience requirements for ASL 2 positions are the same. However, ASL 3 positions require high school plus a minimum of one year vocational training and 3 years’ related experience. For ASL 4 positions and ASL 5 positions, the experience requirement increases to 5 years and 6 years respectively. In this connection, it should be noted that the educational and experience requirements for court stenographers do not appear to have been reviewed for a number of years whereas the ASL series was the subject of a recent classification study.

23. The Union’s position is that the court stenographers’ job compares favourably with those in the ASL 4 classification, particularly that of secretary in the Crown Prosecutor’s office. The Employer, on the other hand, maintains that there is no true match with the court stenographer in any of the ASL classifications. It says that in some instances education and experience requirements are the same but responsibility levels differ. Consequently, it argues that, without the benefit of a classification study, it would not be appropriate to link the court stenographer wage rate with any of the ASL levels.

Comparisons With Other Bargaining Units Doing Similar Work With a Different Employer

24. Both parties presented the Board with information on court stenographer positions in Nova Scotia and Prince Edward Island. The Employer also supplied similar information with respect to Newfoundland.

25. In Nova Scotia and Prince Edward Island, the top rate for court stenographers is $20.03 per hour and $17.63 per hour respectively. This compares with the top rate of $15.67 per hour in New Brunswick. The Union contends that the Nova Scotia and PEI rates clearly demonstrate that court stenographers in New Brunswick are grossly underpaid and deserve a substantial wage adjustment.

26. The Employer, on the other hand, argues that there are major areas of difference between court stenographers in New Brunswick and those in Nova Scotia and PEI. It identifies these differences as being:

27. With respect to education and experience requirements, the rather minimal requirements in New Brunswick have already been discussed. In PEI, court stenographers are required to have high school, preferably supplemented by a recognized office studies/secretarial program plus at least 2 years’ experience working in the court system. In Nova Scotia, where the working title is Justice Officer, court stenographers are required to have 2 years’ post secondary education in a related discipline plus 5 years’ relevant experience in a legal environment, or acceptable equivalent experience and training with exposure to the justice system.

28. In both Nova Scotia and PEI, some court stenographers are Justices of the Peace. The Employer suggests that, in Nova Scotia, Justice of the Peace duties represent approximately 20 to 25% of the court stenographers’ work outside of Halifax. However, the official position description included in the Employer’s documentation estimates the time spent by court stenographers performing Justice of the Peace duties at only 5%. In Prince Edward Island, a recent classification study also indicates that court stenographers spend approximately 5% of their time performing Justice of the Peace duties.

29. With respect to jury selection duties, the Employer says that court stenographers in New Brunswick play a less active role in this regard than do their counterparts employed at the Law Courts in Halifax. Based on discussions with representatives of the Nova Scotia Department of Justice, the Employer suggests that the jury selection function represents approximately 25% of the work performed by court stenographers at the Law Courts. Again, this percentage seems to be very high and it contrasts sharply with the 1% estimate contained in the official position description approved by the Nova Scotia Civil Service Commission on August 17th, 1998.

30. The Employer acknowledges that the basic duties of court stenographers, including transcription and recording of court proceedings, care of exhibits and provision of secretarial services to the judiciary, are the same in all three Maritime Provinces. However, in its view, the rather sizeable wage gap which exists between New Brunswick and the other two Maritime Provinces is largely explained by the aforementioned differences in education and experience requirements, Justice of the Peace duties and jury selection duties.

31. The Employer also invites comparison with the wage rates of court stenographers in Newfoundland. There the top hourly rate is $15.23 which is 44¢ below the New Brunswick rate. The Employer points out, as well, that court stenographers in Newfoundland are required to have post secondary education and secretarial science or business administration, plus considerable experience in a legal setting.

Freely Negotiated Agreements

32. In the private sector, the Union refers to several recent settlements where unionized employees have achieved significant gains. It also draws the Board’s attention to “The Wage Settlements Bulletin” issued by Human Resources Development Canada in January, 2001 which indicates that in November, 2000 private sector wage adjustments for 5,420 employees in 6 settlements averaged 3.3% per annum while, in the public sector, wage increases for 29,010 employees in 13 agreements averaged 3%.

33. The Employer, on the other hand, emphasizes the agreements reached in the New Brunswick public service based on the pattern settlement of 1.5% per annum. The Employer also makes reference to New Brunswick labour market information concerning the wage rates paid to legal secretaries and administrative officers in the private sector. However, it is unclear whether these rates are the product of collective bargaining.

Any Other Factors Considered Pertinent by the Arbitrator(s)

34. Under this head, the Employer urged us to consider the following four matters:

35. The Employer asserts that it has the absolute authority to determine job classifications. The Union did not challenge this assertion and, presumably, therefore, both parties are in agreement that it is not within the mandate of this Board to order a classification study or the adoption of any particular job evaluation plan.

36. With respect to recruitment and retention, the Employer readily concedes that it has broken the pattern settlement in the past when confronted with recruitment or retention problems. It cites the nurses settlement as a case in point. However, the Employer maintains that it has experienced no recruitment or retention problems with the court stenographers group which would warrant any similar wage adjustment.

37. With respect to changes in the Court Services Division during the past decade, the Employer provided the Board with a memorandum prepared by the former Executive Director of the Court Services Division. The memorandum outlines the many changes that have occurred in the division over the past 10 years and how they have impacted on the work performed by the court stenographers. The Executive Director describes the period as one of “continuous change management”.

38. Finally, with respect to collateral effects, the Employer requests that the Board not overlook the potential “ripple effect” of an award which breaks the pattern settlement. The Employer points out that it is faced with renewing several collective agreements this year and expresses concern that an award by this Board in excess of the pattern settlement will impact adversely on its negotiations with other bargaining units and on relativities established under its current job evaluation system.

REASONS AND CONCLUSION

Term

39. During bargaining, the Employer proposed a two-year agreement that would be effective on October 1st, 1999 and expire on September 30th, 2001. However, given the length of time it has taken to settle the contract, the Employer has changed its position and requests that the agreement be for a term of no less than four years. The Union’s position is that the agreement should have a duration of three years.

40. The parties have just been through a lengthy strike. A three-year contract would mean a return to bargaining next year. Under the circumstances, the Board finds that a term of four years is appropriate.

Wages

41. The Board has considered all of the factors which the parties have agreed that we should take into account in formulating our award. Having done so, it is self-evident that no single factor is sufficiently compelling to dictate any given result on the wage issue. However, when all of the factors are taken together, it is clear to the Board that the court stenographers deserve a wage increase which exceeds the pattern settlement.

42. To start with, the real growth in GDP, both in the recent past and projected for the next few years, would ordinarily justify a real wage increase, albeit a modest one. However, having regard to the CPI increase in 2000 and the projected increases over the next few years, court stenographers would almost certainly suffer a real wage loss rather than enjoy a wage gain if they were only granted a 1.5% or even a 2% annual wage increase.

43. More importantly, it is extremely difficult to rationalize the current wage rate being paid to court stenographers with the rates being paid to client services clerks and legal secretaries in the Department of Justice. Given the duties and responsibilities of court stenographers, it is hard to conceive on what basis they should be paid less than the client services clerks. The Board recognizes, of course, that the stated educational and experience requirements for court stenographers is less than those for client services clerks but it appears to the Board that this discrepancy is probably due to the fact that the requirements for court stenographers have not recently been reviewed or updated.

44. The Board is also of the view that the job duties and responsibilities of court stenographers in New Brunswick compare quite closely to the duties and responsibilities of court stenographers in Nova Scotia, PEI and Newfoundland. Certainly, the core duties and responsibilities are the same. There are no doubt some differences but, based on the documentation provided, they are not overly significant and do not explain the large gap in wage rates. The Board is aware, of course, that court stenographers in New Brunswick are paid more than court stenographers in Newfoundland. However, the Employer candidly acknowledged that, in making job matches for wage comparison purposes, it usually looks to Nova Scotia and PEI rather than Newfoundland.

45. The Board concludes that the wages of court stenographers in New Brunswick are inequitably low, both as compared to wage rates in the ASL series and wage rates for court stenographers in the other two Maritime Provinces. This situation has not developed overnight and it is not realistic to expect that it can be rectified in a single round of collective bargaining. However, it is certainly appropriate at this time to take a significant step to close the wage gap which has developed. Accordingly, the Board finds that the court stenographers hourly wage rate should be adjusted upward by $1.00 effective October 1st, 1999. This translates into an increase of $72.50 in the bi-weekly wage scale. In addition, the following percentage increases are to be applied:

46. All wage increases are to be retroactive.

DATED this 6th day of June, 2001.

BRUCE OUTHOUSE, Q.C.
Chair