Firing The Arbitrator

Health and Wellness minister Leo Glavine’s decision to fire Arbitrator James Dorsey was correct in substance, although a bit sloppy in implementation. Dorsey showed the same disdain for the dismissal as he did for the legislation under which he was appointed. Did the appointment make any sense in the first place?

The Health Authorities Act called for him to make a decision within 90 days unless granted an extension by the minister. Such an extension was granted and a report was filed on Jan 17.

It did not fulfill the mandate but did point to possible ways forward. More hearings were held. Both employers and unions could reasonably have expected that the subsequent report delivered on Feb 19 would bring the matter to a conclusion. It did not, and left no indication of a way forward. The concluding paragraph shows no sense of urgency:

“The outstanding matters are the bargaining agents to represent the two Nursing and two Support bargaining units. I continue to retain jurisdiction as Mediator-Arbitrator and invite submissions on how the outstanding matters are to be resolved.”

That is not the only area where Dorsey is plainly at odds with the legislation’s intent that each of the four unions currently representing health care workers be designated as the bargaining agent for one of the groups of employees.

He insists that each appointed union represents a majority of employees within each of the IWK and the provincial health authority. To make that happen he invited the four of them in January to find some way of amalgamating operations to meet his test.

Unsurprisingly that did not happen, particularly because the NSGEU was not interested in dealing with the others. Instead it merged some of its own units to get a majority of the clerical workers, in addition to the existing majority of health care workers.

Dorsey was willing to accept this manoeuver but rejected an Order in Council by the government to clarify that having a combined majority in the two employers would be adequate for the nursing group—a change which seemed to be what Dorsey suggested in his January report.

The Nova Scotia Nurses Union (NSNU) has 92% of the IWK nurses. It is within 100 of having a majority of the 8,546 provincial health authority nurses. What is the point of so finely parsing the idea of a majority?

Dorsey feels that nurses will find it heartbreaking that their benefits after amalgamation will be the same as they were before, given that past public sector mergers often gave employees best of everything from predecessor agreements. Thus only a union meeting his idea of majority can provide a mandate to accept such a disappointing outcome. Hard pressed taxpayers might find it heartbreaking if the past practice is repeated, but that is not of interest to Mr. Dorsey.

Dorsey’s two reports repeatedly invite the government to hold votes among groups of workers in spite of the clear message in the act and elsewhere that this would not occur. Nor would Joan Jessome have meekly withdrawn her calls for a vote if NSNU’s tiny shortfall from a majority been overcome by a slightly different assignment of some of the workers.

Dorsey has a reputation for creativity, which is one of the reasons minister Glavine agreed to appoint him, to the delight of the unions. The minister does not, in retrospect, feel that it was a good choice. He expected the creativity to be applied more even-handedly, and that the arbitrator would show more interest in the stipulated timetable.

Dorsey clearly disagrees with the act’s expectation that each of the four unions would represent one group of workers, and that there would be no votes. He did not accept the time constraints. Under those circumstances it is odd that he would choose to accept the appointment.

Some might suggest that the $200,000 and counting that he has billed for the work represents pretty good wages for a few months’ work when he was not otherwise occupied.

Another possibility is that he saw it as an opportunity to frustrate the intentions of the act, which he clearly dislikes. He signalled his plans early: “the Mediator-Arbitrator is not simply an usher showing everyone to pre-assigned seating.” With an eye to the prospects in other provinces, for future appointments to which unions have to agree, he may simply be unwilling to be party to a decision detested by the mainstream labour movement.

What is clear is that the choice to proceed on a crucial health policy issue through an arbitrator exposed the whole project to considerable and unnecessary difficulty.

Arbitrators are not judges. Government has a choice about when to prescribe their use.  It should be hesitant about delegating big ticket decisions to arbitrators, and it should be more careful about who it agrees to appoint.