Get a Grip
Posted January 23, 2015
James Dorsey was appointed as mediator-arbitrator under the Health Authorities Act to resolve how 50 bargaining units should be consolidated into four. The Act takes only a couple of pages to spell out the mandate in precise terms. Dorsey’s response occupies 192 pages. He sometimes appears to view the provisions of the Act as merely suggestions.
The Act says:
“(a) there must be four bargaining units of unionized employees for each health authority, namely, a nursing bargaining unit, a health care bargaining unit, a clerical bargaining unit and a support bargaining unit;
(b) all unionized employees who occupy positions that must be occupied by a registered nurse or a licensed practical nurse must be included in the nursing bargaining unit for the health authority that employs those employees;
(c) each union
i. may represent only one of the four bargaining units for a health authority, and
ii. must represent the same type of bargaining unit for each health authority;
(d) to be eligible to represent a bargaining unit, a union must, immediately before the coming into force of this Section, represent the unionized employees in a bargaining unit of the same type for at least one district health authority.”
and
“…the nursing bargaining unit is composed of all unionized employees who occupy positions that must be occupied by a registered nurse or a licensed practical nurse.”
Dorsey explains his view of the “majoritarian principle”, arguing that principles of democracy require a union to be supported by a majority of members to be certified. Of course that is not the way our democracy works. It has been three decades since any party won more than 50% of the vote in a Nova Scotian or Canadian election. And when one party has a plurality but not a majority of seats, it still gets to form the government.
As a practical matter only the clerical group (NSGEU) has a majority from one union No matter. Dorsey tells us that: “It cannot be the legislative intent in this restructuring for the first time in Canadian history to impose certification of three unions as exclusive bargaining agents for bargaining units of employees without majority employee support.” And “…no employer wants to bargain with a union […] that does not represent a majority of its employees.”
Any plain reading of the Act tells us that was exactly the intent of the employer, because for three of the groups there is no majority union. Both the IWK and the regional health authorities (RHA’s) had plenty of opportunity to object. They did not.
The NSNU has a majority of nurses (RN’s and LPN’s) at the IWK and in total. Dorsey estimates that the NSNU has 48.9% of the nurses in the amalgamated authority. He appears to have searched everywhere for a pebble to stumble on and finds it there.
It is crystal clear that the straight-forward path to follow the act is by certifying the NSNU for those employees.
Premier McNeil has eliminated this unnecessary impasse by combining the nursing units for the provincial health authority and IWK Health Centre into a single or common employer unit for bargaining purposes, without compromising the IWK’s independence. Good.
Needless to say Dorsey likewise cannot abide allowing Unifor and CUPE, the two other unions, to represent the health care and support groups since there is nothing close to a majority share of representation in either. Instead he argues that each individual union local is a union for this purpose and invites them and the relevant NSGEU locals to fashion amalgamations.
They seem to be amalgamations in name only “(it) can also take the form of an amalgamation in which each of the former unions continues to exist, perhaps only with a change in name. There can be minor changes with the unions (by which he means the relevant union locals) continuing to operate with their pre-amalgamation structures and organization essentially unchanged.” In other words, it looks like a bargaining association, which the government has rejected, dressed up in different clothes. Worse, it preserves obsolete boundaries for no reason that benefits members.
Dorsey argues that the amalgamations meet the province’s requirement for single bargaining agent, and that what he is proposing is “not a council of trade unions, not a bargaining association and not a joint structure of autonomous unions.”
Union leaders are getting a different message. They believe that they can keep their members after amalgamation. How can such an arrangement serve the interests of the new union’s members? Since there is to be only one contract why is there a continuing need for different locals?
He invites the unions to create amalgamations for the health care and support groups, but he does not exclude it for the others. The members of these new creations will not have voted for them—so much for majoritarian principles.
It’s time for government to get a grip. It was not expecting this outcome. The process has already dragged on longer than it was supposed to, and no conclusions on representation have been reached. The unions may not reach an amalgamation agreement, or may present one that government views as unsatisfactory, but which Dorsey chooses to accept.
The government must define clear timelines for a complete decision on representation to be reached, and specify the conditions it expects, including the degree of autonomy, in any new amalgamations that are proposed as candidates.
The government has patiently and effectively moved this file along since the day it was elected. It should not let the project become derailed at this late stage.
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