Canadian Union of Public Employees, Local Unions 835 v South Shore District Health Authority

HEALTH AUTHORITIES ACT

S.N.S. 2014, c. 32

MEDIATION-ARBITRATION DECISION

CANADIAN UNION OF PUBLIC EMPLOYEES, Local Unions 835, 1933, 2431, 2525, 4150

NOVA SCOTIA GOVERNMENT AND GENERAL EMPLOYEES UNION

NOVA SCOTIA NURSES’ UNION

UNIFOR, Local Unions 4600, 4603 and 4606

UNIONS

SOUTH SHORE DISTRICT HEALTH AUTHORITY

SOUTH WEST NOVA DISTRICT HEALTH AUTHORITY

ANNAPOLIS VALLEY DISTRICT HEALTH AUTHORITY

COLCHESTER EAST HANTS HEALTH AUTHORITY

CUMBERLAND HEALTH AUTHORITY

PICTOU COUNTY HEALTH AUTHORITY

GUYSBOROUGH ANTIGONISH STRAIT HEALTH AUTHORITY

CAPE BRETON DISTRICT HEALTH AUTHORITY

CAPITAL HEALTH AUTHORITY

IZAAK WALTON KILLAM HEALTH CENTRE

EMPLOYERS

ATTORNEY GENERAL OF NOVA SCOTIA

ATTORNEY GENERAL

________________________________________________________________________

Mediator-Arbitrator:

James E. Dorsey, Q.C.

November 6 to 17, 2014

Dartmouth, Nova Scotia

December 9 to 13, 2014

Goffs, Nova Scotia

Dates of Mediation:

Location of Mediation:

Dates of Arbitration Hearing:

Location of Arbitration Hearing:

Dates of Written Submissions:

December 22, 2014;

January 5 and 12, 2015

Date of Decision:

January 17, 2015

JamesE. Dorsey, Q.C. • 3380 Redfern Place, North Vancouver, B. C. V7N 3W1 • Tel 604-980-7225 • Fax 604-909-2755 dorseyj@shaw.ca •

www.adrweb.ca/james-dorsey

Representation:

CUPE

Susan D. Coen

Jacquie Bramwell

Wayne Thomas

Carole Ferguson

NSGEU

Legal & Legislative Representative

Atlantic Regional Director

Servicing Representative

Atlantic Research Representative

Drew S. Plaxton

Heather M. Jensen

Joan Jessome

Shawn Fuller

Robin MacLean

George Vaughan

NSNU

Counsel

President

Director of Negotiations & Servicing – Health Care

Director of Negotiations & Servicing – Government & Education

Servicing Coordinator

Elizabeth McIntyre

Janet E. Borowy

Janet Hazelton

Jean Candy

Counsel

President

Executive Director

Chris Albecht

Paul Curry

Labour Relations Representative & Chief Negotiator

Researcher / Educator

UNIFOR

Barry D. Wadsworth

Lana Payne

Counsel

Atlantic Director

Susan Taylor

Linda MacNeil

National Representative

EMPLOYERS

Patrick J. Saulnier

Thomas W. Groves

Dave Collins

Counsel

Manager, Labour Relations, Capital District Health Authority

Director, People Services, South Shore District Health

Authority & South West Nova District Health Authority

Senior Manager, Labour Relations, Cape Breton District

Health Authority

Elizabeth Henheffer

Kevin Hooper

Ryan Embrett-Baboushkin Director, Human Resource Operations, IWK Health Centre

Bob Dunn

Director of Labour Relations and Compensation Analysis,

Health Association Nova Scotia

Mandy Proulx

Compensation Research Analyst, Health Association Nova

Scotia

ATTORNEY GENERAL OF NOVA SCOTIA

Alex M. Cameron Counsel

CONTENTS

1. ACUTE CARE CONSOLIDATION AND STREAMLINING PROMISED IN 2013..........1

1.1 Consolidating Acute Care Health Program Management for April 1, 2015...........1

1.2 Community Health Boards and Regional Management Zones .............................5

Map: Four Regional Management Zones...............................................................6

1.3 Health Authority Collaboration and Provincial Shared Services............................8

2. A THIRD RESTRUCTURING – 4 REGIONS ► 9 DISTRICTS ► 1 PROVINCIAL.......9

3. LABOUR LANDSCAPE – LEGACY OF DECISIONS AND EVOLUTION...................11

3.1 Four Standard Hospital Bargaining Units is Labour Board Policy.......................14

3.2 Licensed Practical Nurses in both Health Care and Nurses Units ......................18

3.3 Government Creates Public Health and Addiction Services Unit in 1997...........22

3.4 Halifax Regional Municipality: Four Standard Units with More Employees.........23

 Capital District Health Authority.......................................................................24

 IWK Health Centre ...........................................................................................28

3.5 Current Representation Landscape: Bargaining Units and Employees ..............28

Table 1: DHA Units – Approx. Employee Numbers – November 25, 2014.........30

3.6 Current Collective Agreements: Number, Coverage and Expiration...................31

Table 2: Collective Agreement Distribution..........................................................31

3.7 Arbitrated Bargaining Impasses since 2000: NSGEU and CDHA.......................33

3.8 Rivalry and Recent Instances of Union Collaboration .........................................42

4. UNIONS AND EMPLOYERS DISAGREE HOW TO RESTRUCTURE........................44

4.1 Broad Union Perspective on Restructuring..........................................................47

4.2 Health Care Unions Propose Multi-union Bargaining Association ......................56

Table 3: DHA Units – Approximate Number of LPNs – November 25, 2014......61

4.3 Employers Reject Unions’ Proposal as Fundamentally Flawed ..........................62

5. GOVERNMENT LEGISLATES NEW LABOUR RELATIONS STRUCTURE..............65

5.1 Seizing the Opportunity to Streamline the Labour Relations Structure...............66

5.2 Process Choice Implications for Labour Relations Restructuring .......................70

5.3 Mediated Negotiations: Seeking Creative Solutions............................................73

6. NSGEU CHARTER OF RIGHTS AND FREEDOMS CHALLENGE.............................74

7. BARGAINING UNIT BOUNDARIES AND CLASSIFICATION GROUPINGS.............75

7.1 Nursing Unit Composition – Registered and Licensed Practical Nurses ............76

A. “Generic” Classification Positions....................................................................76

B. Distribution of Registered Nurses in Province-wide Unit ................................82

Table 4: RNs in Public Health and Addictions Services Units.............................82

Table 5: RNs - District Health Authorities & IWK – November 25, 2014.............84

C. Licensed Practical Nurses...............................................................................85

Table 6: Nurse Staffing Mix in District Health Authorities ....................................88

Table 7: Distribution of LPNs for Inclusion in Nursing Unit..................................98

7.2 Health Care Unit Composition..............................................................................98

A. Twenty Unopposed PH&AS Classifications to Health Care ...........................98

Table 8: 20 Classifications (448 employees) from PH&AS to Health Care.........99

B. Classifications and Associated Classifications in Two Standard Units.........100

 Medical Transcriptionist C (Clerical) ............................................................101

 Porters (Support)..........................................................................................101

 Dietetic Technician (Health Care) ................................................................102

 Ward Aide and Orderly (Health Care)..........................................................102

 Patient Attendants (reserved for continuation).............................................103

 Unit Aide and Lead Hand (reserved for continuation)..................................104

 Coordinator Information (reserved for continuation) ....................................105

 Coordinator Telecommunications (reserved for continuation).....................105

 Health Care Equipment Maintenance (reserved for continuation) ..............106

 Information Technology (reserved for continuation) ....................................106

 Sterile Processing Positions (reserved for continuation) .............................107

 Miscellaneous and Overlooked Positions (reserved for continuation) ........107

Table 9: Distribution - Information Technology Classifications and Positions...109

Table 10: Distribution - Sterile Processing Classifications and Positions .........110

C. Other Health Care Proposed for Clerical (reserved for continuation)...........111

Table 11: 5 Groups; 92 Classifications; 250 Positions ......................................123

7.3 Clerical Unit Composition ...................................................................................126

 Resource Facilitator (Clerical)......................................................................126

 Buyers, Senior Buyers & Procurement Coordinators (Clerical)...................126

 Stores (Clerical)............................................................................................127

Table 12: Distribution of Stores Classifications and Positions...........................128

 Eight PH&AS Clerk and Secretarial Classifications (Clerical) .....................129

 Maintenance Planner (Support) ...................................................................129

 Twenty Five PH&AS Classifications (reserved for continuation).................129

Table 13: PH&AS Classifications Reserved for Continuation............................130

7.4 Support Unit Composition...................................................................................131

 Transportation Driver (Support)....................................................................131

 Three PH&AS Classifications (Support).......................................................131

8. SENIORITY INTEGRATION........................................................................................132

9. ALL COLLECTIVE AGREEMENTS REMAIN IN FORCE..........................................133

10. BARGAINING AGENT CERTIFICATION..................................................................137

A. Nursing Bargaining Units ...............................................................................142

 NSNU Does Not Have Required Double Majority........................................143

Table 14: Distribution of RN and LPN Positions in Two Nursing Units .............146

 No Authority to Conduct Representation Vote.............................................147

 What eligible union is to be certified? (reserved for continuation)...............151

B. Clerical Bargaining Units ...............................................................................156

 NSGEU Has Required Double Majority .......................................................156

C. Health Care Bargaining Units ........................................................................157

 NSGEU Does Not Have Required Double Majority .....................................157

 Amalgamated Successor Union as Bargaining Agent.................................157

Table 15: All Units – Approx. Employee Numbers – November 25, 2014 ........169

 “Nova Scotia Health Care Amalgamated Union” .........................................174

D. Support Bargaining Units...............................................................................176

11. CANADIAN CHARTER OF RIGHTS AND FREEDOMS...........................................179

Schedule 1 – Integration of Seniority...........................................................................185

Schedule 2 – Interim Protocol Regarding Collective Agreements ..............................188

Schedule 3 - Order.......................................................................................................191

1

1.

ACUTE CARE CONSOLIDATION AND STREAMLINING PROMISED IN 2013

[1]

A headline promise in the 2013 election platform of the Liberal Party of Nova

Scotia was to spend health care dollars in emergency rooms not boardrooms. The

promise was to “do what it takes so that our health care system puts patients first.”

Nova Scotians elected a majority of Liberal members to the 62^ndGeneral Assembly,

which formed government October 22, 2013.

1.1

Consolidating Acute Care Health Program Management for April 1, 2015

[2]

The new government immediately said it would streamline acute care service

delivery by replacing nine district health authority service deliverers with one provincial

health authority.

[3]

The nine district authorities established by legislation in 2000¹had replaced four

regional service delivery agents established in 1994.²

[4]

This course of action was affirmed by the Minister of Health and Wellness in

February 2014.

Our ability to pay for health services is becoming even more challenging as the

federal government changes how it funds health services across the country,

moving to a per capita funding formula. Nova Scotia’s demographics and burden

of illness are not considered. It means we will receive $23 million dollars less

from the federal government next year, and about $1 billion less over the next ten

years. Clearly, our approach must change. Duplication must be eliminated.

Service delivery must be as efficient as it can be, resources must be used to

promote better health, improve quality and outcomes and target top priorities.

Fewer health authorities will allow for a streamlined, more efficient system and

will enable a provincial planning approach. This will allow us to integrate

services where it makes sense, providing more equitable access to specialized

services with a focus on quality-patient-centered, culturally competent care.

Information can be shared across the province more easily, with more consistent

approaches to everything from data collection to service delivery. There will no

longer be ten different interpretations of programs, policies and services. Health

assets will be used as efficiently and effectively as possible for the benefit of the

patient and front line care.³

[5]

The goal is to improve health outcomes for Nova Scotians by maximizing

benefits from every dollar spent. “With a more coordinated approach to service

¹Health Authorities Act, S.N.S. 2000, c. 6

²Regional Health Boards Act, S.N.S. 1994, c.12

³Health Care Conversations: What We Heard, Nova Scotia, June 2014, p. 2

2

delivery, we can enhance front-line patient care and care that is delivered in

communities.”⁴

[6]

On increased efficiency, the Minister reported there had to be more shared

corporate services across the province, less duplication and fewer resources spent on

negotiating multiple collective agreements.

[7]

Implementing and managing service change is always challenging. Making

sweeping change without compromising ongoing service is more challenging. The

Minister identified the challenge, the extent to which its success depends on the people

providing the service and the need for their involvement:

Those working within the system are compassionate, dedicated and above all,

resourceful. The ingenuity they display is surpassed only by their passion for the

job and their patients. These qualities were evident at discussions that were held

in every region of the province regarding the plan to restructure Nova Scotia’s

health care delivery system. The plan will consolidate the nine existing district

health authorities into one provincial authority, the IWK will continue as a

separate entity. Change of this magnitude must be done carefully, and cannot

be done successfully unless those who work within the system are engaged and

involved.⁵

[8]

The Department of Health and Wellness announced a team to coordinate

planning to implement the change effective April 1, 2015. “The messages heard on tour

and relayed in the What We Heard report, along with the themes identified by the

Department, will help guide the work of the Transition and Design Team.”⁶

[9]

In a June 2014 report explaining the Minister’s “Listening and Learning Tour”, the

Department underscored the importance of health care workers in the change process.

What will [be] the most important thing to consider as you merge the health

authorities?

The strength of any system is the people who are part of it and their strengths,

skills, resourcefulness and commitment. As we consolidate the health authorities

we will want to maintain our focus on what is best for patients and how we can

best support those who we rely on to provide and support care and focus on

service, teaching and research.⁷

[10]

The failings of the current structure were listed June 25^thas follows:

⁴Health Care Conversations 2014 – What We Heard, p. 8

⁵Health Care Conversations: What We Heard, Nova Scotia, June 2014, p. 1

⁶District Health Authority Consolidation What We Heard Report - Listening & Learning Tour Frequently

Asked Questions, June 3, 2014, Summary

7

District Health Authority Consolidation What We Heard Report - Listening & Learning Tour Frequently

Asked Questions, June 3, 2014.

3

• Lack of singular purpose, direction, culture and accountability leading to

variable care and outcomes

– 10 different strategic plans, vision statements and operational goals

• Technological barriers remain despite best efforts to consolidate

– SAP system was intended to standardize approaches – still

considerable variation

• Resource capacity in the smaller DHAs creates gaps and risks

– Single incumbent positions (e.g. legal counsel, internal medicine)

• Current structure leads to inter‐district competition for health professionals

and resources

• 10 structures for approximately 900,000 residents

• Limited coordination and standardization (administrative and clinical) results

in inefficiencies⁸

[11]

The boards of the nine district health authorities were disbanded effective July

1^st. An administrator was appointed to oversee management of the districts until April 1,

2015.

[12]

The Department published “Transition News” to communicate and explain the

change process. In the first issue in July, one of the “fast facts” was: “Staff who are

impacted by the consolidation and ongoing transition will be treated fairly with terms and

conditions of employment and collective agreement provisions honoured.”⁹

[13]

In September, the Minister named the Chief Executive Officer for the

consolidated provincial health authority. She joined the Transition and Design Team

working with principles intended to reflect seven quality components – safety;

population focus; accessibility; supportive of healthy workplace culture; people

centered; continuity of service; and effectiveness, efficiency and sustainability.¹⁰

[14]

In October, the legislature enacted new health authority governance and

structural change effective April 1, 2015.¹¹The existing nine district health authorities

will become one as yet unnamed provincial health authority with a mandate to “provide

health services to the entire Province, except for those health services provided by the

IWK Health Centre.”¹²The provincial health authority will partner or align with IWK

Health Centre, which continues as a separate corporate body with its own board of

⁸People Centered Health Care Transition Planning for DHA Consolidation, June 25, 2014

⁹Transition News, Issue #1, July 15, 2014. p. 4

¹⁰Info, Design Principles, September 22, 2014

¹¹Health Authorities Act, S.N.S. 2014, c. 36

¹²Section 49(1)

4

directors and a mandate to “operate a health centre and to provide health services and

programs for children, youth, women and families.”¹³The IWK Health Centre has an

Atlantic province mandate and receives funding from other provinces. The provincial

health authority and IWK Health Centre are each a “health authority.”¹⁴

[15]

While there is recurring reference to the current structure of acute health care

service delivery as a “system”, an identified problem is that the structure does not act

with enough integration and consistency. The consolidation of the nine district health

authorities aligned with the IWK Health Centre is to overcome “ten different

interpretations of programs, policies and services” and, perhaps, health outcomes.

[16]

Some of the goals of this restructuring and realignment are: to use limited

resources more efficiently and effectively; to foster and support collaborative practice

among health care professionals; to ensure they can practice to their full scope; to

diminish competition among communities in recruiting and retaining health care

providers; and to promote innovative service delivery.

[17]

The Minister recognized employee anxiety over the impact of restructuring.

Uncertainty increases anxiety and staff need to know as soon as possible how

they will be affected by restructuring. Concerns were shared regarding the time,

effort and resources spent negotiating 215 separate health contracts, noting that

perpetual negotiations for a province of this size is simply not sustainable. As

one health professional noted, “That’s a lot of time in hotel rooms”.

Concerns focused on how local unions will be impacted. A strong desire to avoid

run-off votes and the resulting impact on the workplace was consistently shared.

Anxiety around job losses or possible job relocation is surfacing. Many stressed

the need for a robust change-management process as part of the way forward.¹⁵

[18]

One part of the vision is: “The labour relations environment is less complex than

it is now.”¹⁶The plan moving forward was to:

Work with union leaders and their members to ensure that the transition is as

smooth as possible. Listen to their ideas. Provide regular, factual and timely

information to outline the progress being made and the potential impact on the

workplace. We will look for cooperation from unions in an effort to avoid run-off

votes. We are committed to change that is respectful, collaborative and

transparent.¹⁷

¹³Section 43(2)

¹⁴Health Authorities Act, S.N.S. 2014, c. 36, s. 2(1)(o)

¹⁵Health Care Conversations 2014 – What We Heard, p. 12

¹⁶Transition News, Issue #3, September 25, 2014, p. 3

¹⁷Health Care Conversations 2014 – What We Heard, p. 12

5

The subsequent discussion with the unions is reviewed later.

1.2

Community Health Boards and Regional Management Zones

[19]

With a history of community based hospitals having been regionalised and then

devolved to nine districts, there was concern about centralization in the Halifax Regional

Municipality. The longer name of the legislation is An Act to provide for Health

Authorities and Community Health Boards.

[20]

The two health authorities must prepare annual business plans that include a

public engagement plan.¹⁸Community health boards, whose boundaries can be altered

by the provincial health authority, continue.

The objects of a community health board are to advise the provincial health

authority on local perspectives, trends, issues and priorities, and to contribute to

health-system accountability by facilitating an exchange of information and

feedback between the community and the provincial health authority.¹⁹

[21]

Regulations may establish regional management zones within the provincial

health authority.

(1) Management zones within the Province may be established by the

regulations for the purpose of delivering and managing health services on a

regional level at the direction of the provincial health authority.

(2) Subject to clause 9(a), the provincial health authority shall determine the uses

of management zones in the delivery and management of health services by

the provincial health authority.²⁰

[22]

Regulations have not been made, but the Department has identified there will be

four zones. The zone coverage of the nine district health authorities is:

Zones

District Health Authorities

Western

South Shore District Health Authority

South West Nova Health Authority

Annapolis Valley District Health Authority

Colchester East Hants Health Authority

Cumberland Health Authority

Northern

Pictou County Health Authority

Eastern

Central

Guysborough Antigonish-Strait Health Authority

Cape Breton District Health Authority

Capital District Health Authority

¹⁸Health Authorities Act, S.N.S. 2014, c. 36, s. 40(6)

¹⁹Health Authorities Act, S.N.S. 2014, c. 36, s. 62

²⁰Health Authorities Act, S.N.S. 2014, c. 36, s. 60

6

Map: Four Regional Management Zones

21

[23]

County-based zone boundaries were determined by service, staffing and

program delivery considerations:

 where Nova Scotians typically access services

 traditional community affiliations and medical staff relationships (e.g. referral

patterns)

 recent/concurrent planning processes that address/consider boundary issues

 the impact of geographic boundaries as an enabler/barrier to future clinical

services planning, and

 the geographic boundaries used by other connected services such as

Community Services.

This is a logical grouping of counties and the health facilities and services within

them. It will help optimize collaboration and integration as part of our new health

authority structure. In its design recommendations the DHA Consolidation

Transition & Design team will include advice on how services and staff can be

structured by management zones that are part of the provincial health authority,

as well as the operations offices for the zones.²²

[24]

The Transition and Design Team has recommended leadership structure for the

provincial health authority and its four management zones. Seven vice-presidents have

²¹Transition News, Issue #2, September 8, 2014, p. 3

²²Info, Management Zones, September 2, 2014

7

been named. Each zone will have two Executive Directors – one Operations and one

Medical. The four Medical Executive Directors will report to one V.P. Medicine and

Integrated Health Services. The four Operations Executive Directors will each report to

four Vice Presidents with different program responsibilities. The role of each

management zone Operations Executive Director is:

 Creates integrated networks within the Management Zone

 Works with Management Zone leadership to identify and recommend safe

and quality health services by location and facility

 Engages the public, patients and families and other stakeholders in the

identification and planning of priorities for health services

 Leads a healthy, safe, diverse and respectful workplace by championing and

practicing sound human resources management

 Supports the transition and alignment of services and programs across zones

 Cultivates relationships with CHBs, [Community Health Boards] foundations,

auxiliaries and local leaders²³

[25]

The locations of the corporate and zone offices have been determined:

 Corporate Office:

 Will be located in Halifax Area (specific location to be determined)

 Will be separate from Central Zone leadership office

 Zone leadership office locations:

 Western – Kentville (15 Chipman Drive offices)

 Northern – Truro (Colchester East Hants Health Centre)

 Eastern – Sydney (Cape Breton Regional Hospital)

 Central – Halifax (to be determined)

 Rationale:

 Minimal travel distance between zone office and other main facilities within

the zone

 Proximity to major system partners

 Technology largely available to support communication across NS²⁴

How were the zone office locations established?

The transition team researched and ranked zone office locations based on a

number of factors. The selected locations include the following advantages:

 Minimum travel distance between zone office and other main facilities within

the zone.

²³District Health Authority Consolidation Provincial Health Authority Executive Structure, October 30,

2014, slide 21

24

DHA Consolidation – Transition and Design People Centred Care Provincial Health Authority

Executive Structure and Accountabilities, October 30, 2014, slide 25

8

 Proximity to major system stakeholders – reducing travel time for system

leaders to interact with Government, IWK Health Centre, academic

institutions and provincial bodies, such as regulatory colleges.

 Technology is largely available to support communication across the

province.²⁵

[26]

The Transition and Design Team’s planning assumptions are:

 People centred and focus on quality and patient safety

 Focus for April 1 on executive (CEOs, VPs, administrative assistants) and

zone leadership

 Clear links between zone management and provincial leadership

 Mission encompasses service delivery, academic and research mandates

 Explore administrative alignment opportunities with IWK as Provincial Shared

Services evolves (in addition to current shared VP Research and Academic)

 Savings in administration on April 1, and thereafter²⁶

1.3

Health Authority Collaboration and Provincial Shared Services

[27]

Collaboration between the provincial health authority and IWK Health Centre is

expected: “Where directed to do so by the Minister, the health authorities shall

collaborate with each other on all or part of their health-services business plans.”²⁷

[28]

The Transition and Design Team will “also identify priorities and suggest

approaches for sharing or merging services with the IWK.”²⁸

[29]

Initiatives to share corporate and targeted services that began before 2014 are to

continue – human resources, information technology, procurement, finance, laboratory

service and diagnostic imaging. Some services will be provided outside the provincial

health authority and IWK Health Centre.²⁹

[30]

A Shared Services Act with scope beyond health care was enacted in

November.³⁰The current and future approach to human resource shared services is

summarized as follows:

25

District Health Authority Consolidation Executive Structure / Recruitment Process / Zone

Offices Questions & Answers – October 2014, p. 3

²⁶DHA Consolidation – Transition and Design People Centred Care Provincial Health Authority Executive

Structure and Accountabilities, October 30, 2014, slide 3

²⁷Health Authorities Act, S.N.S. 2014, c. 36, s. 40(3)

²⁸Transition News, Issue #2, September 8, 2014. p. 2; see also Update Shared Services, October 20,

2014

²⁹Transition News, Issue #4, October 20, 2014, pp. 4-5

³⁰S.N.S. 2014, c. 38

9

Given that organizations such as nursing homes and home care agencies rely

heavily on these services [labour relations, compensation analysis and group

benefits administration] to support their operations, the proposed model will

recommend a continued role for the association [Health Association Nova Scotia]

in delivering labour relations and compensation analysis and group benefits

administration services.

A suggested model for human resources will be finalized in the coming months

and submitted to government for their consideration. Among other things, this

work will identify the extent to which these services will be offered by Health

Association Nova Scotia and the degree to which human resources functions will

be centralized or decentralized.

The full implementation of the redesigned human resources model will occur over

the next two years and will depend on technology to maximize the potential

benefits.³¹

[31]

One impact of shared services will be the transfer of some employees of district

health authorities and the work they do to the provincial government shared services

provider. They will become employees of the provincial government covered by

collective agreements in bargaining units represented by the Nova Scotia Government

and General Employees Union (NSGEU). The current estimate is 150 to 200

employees. The projected implementation of all shared services across the provincial

public sector is five years.³²

2.

A THIRD RESTRUCTURING – 4 REGIONS ► 9 DISTRICTS ► 1 PROVINCIAL

[32]

This province-wide restructuring happens against a backdrop of previous

restructurings that apparently failed to achieve their goals.

Fears of a centralized approach are rooted in history. The past saw communities

feeling neglected, needs overlooked and those close to the decision makers

holding the greatest influence. Boundaries became the lines of isolation. Local

voices were lost and urban areas were favoured over rural.³³

[33]

Tension between rural and urban interests or local and remote control are

evident in the debate about the current restructuring, as in previous centralizing

restructuring.

[34]

In July 1999, a Ministerial Task Force made recommendations to strengthen and

complete regionalization and to minimize “the potential chaos of further organizational

³¹Update Shared Services, October 20, 2014

³²Department of Internal Services, Shared Services Project - Fact Sheet October 2014

³³Health Care Conversations 2014 – What We Heard, p. 8

10

change.”³⁴Then in October 1999, the Minister of Health of a new government with an

election platform “to replace the existing RHBs [Regional Health Boards] with nine

boards that are based on the catchment areas of the nine regional hospitals”³⁵

announced the disbandment of Regional Health Boards.

This decision is the Government of Nova Scotia's first step towards establishing a

more community-responsive health care system that will see District Health

Authorities established in the province. District Health Authorities will be smaller

than the current Regional Health Boards, and they will have formal links to

Community Health Boards. ³⁶

[35]

Service integration goals for both the 1994 and 1999 restructurings were similar

to the goals of the current restructuring.

There will be nine (9) DHAs that will be aligned, in general, along county lines.

The DHAs will be based in the areas primarily served by existing regional

hospitals, and they will enjoy the same historical relationships, catchment areas,

and referral patterns.

*********

There will be nine District Health Authorities serving geographic areas smaller

than the previous regions. These new structures will make the system more

responsive to the needs of Nova Scotians and enhance the efforts that are

already under way to better integrate the province's health care services.³⁷

[36]

The regional boundaries that were erased were similar to the new management

zone boundaries replacing the boundaries of the district health authorities.

[37]

The 1999 policy on labour relations restructuring was succinct and in keeping

with existing labour relations legislation – “Unions will be kept informed and provincial

succession rights legislation will guide migration to the new structure.”³⁸

[38]

Since 1994, the restructuring path has been from community-based to regional

management to smaller, more local district/county management to central provincial

management with regional zone management.

³⁴Minister’s Task Force on Regionalized Health Care in Nova Scotia, Final Report and

Recommendations July 1999, Letter of Transmittal

³⁵Nova Scotia Department of Health, Future Direction of the Health care System …establishing District

Health Authorities, November 1, 1999, p. 19

³⁶Nova Scotia Department of Health, Future Direction of the Health care System …establishing District

Health Authorities, November 1, 1999, p. 1

³⁷Nova Scotia Department of Health, Future Direction of the Health care System …establishing District

Health Authorities, November 1, 1999, p. 2; 4

³⁸Nova Scotia Department of Health, Future Direction of the Health care System …establishing District

Health Authorities, November 1, 1999, p. 22

11

[39]

In the current restructuring, smaller geographic areas of common interest are

recognized in the continuation of 37 community health boards across the province.

However, historic and geographic trade union representation of acute care

[40]

employees generally tied to regional, now zone, management is not explicitly

recognized in acute care labour relations restructuring in the transitional sections of the

Health Authorities Act.

[41]

Each restructuring required accompanying labour relations restructuring for the

new employer structure. In this restructuring, existing collective bargaining relationships

are not being modified. They are being swept away. As a consequence, potential

operational and organizational chaos is a recurring forecast for this restructuring by the

unions that lived through past restructurings.

3.

LABOUR LANDSCAPE – LEGACY OF DECISIONS AND EVOLUTION

[42]

Union resistance to this centralizing labour relations restructuring is rooted in

history and local union loyalties. To understand this resistance, it is necessary to review

how the current landscape evolved.

[43]

It begins with employees of community-based hospital employers choosing

representation by unions active in their community. The first appears to have been in

1955 when the Canadian Hospital Employees Union, Local Union No. 324 was certified

by the Labour Relations Board to represent groups of employees of the Aberdeen

Hospital Commission in New Glasgow and the City of Sydney Hospital.³⁹

[44]

A 1962 fact finding inquiry into labour legislation reported a tension at hospital

collective bargaining tables between local hospital autonomy and central funding by the

new provincial Hospital Commission. Unions wanted to negotiate with the central

payer. The Hospital Commission advocated local bargaining.

The Commission also contended, and in our view with justification, that every

effort should be made to see that local hospitals retain the measure of autonomy

which they now have. Any lessening of that autonomy might seriously impair the

great degree of responsibility which local hospital areas now exercise towards

these institutions.

³⁹The Aberdeen Hospital Commission, October 27, 1955, LRB #377. An earlier application was

dismissed September 13, 1955, LRB #366. See also City of Sydney Hospital, December 21, 1995, LRB

#402.

12

Collective bargaining, as an important factor in the matter of autonomy, should

remain at the local hospital level. It was pointed out to us that the Hospital

Commission encourages fund-raising by means of local campaigns and the

imposition of extra charges for semi-private and private rooms, and that some

hospitals have realized extra revenue through this means.

It is suggested that this complaint may be remedied by the union and hospital

boards negotiating new agreements early in the year but not finalizing the same

until after the Government has ruled on the hospital budgets presented to it by

the Commission. By this method the Commission would be aware of the terms

agreed to by the hospital boards and, presumably, would so provide accordingly

in the budget presented to the Government for approval. When that information

became available, the agreement could be finalized.⁴⁰

[45]

In the 1960’s, employees in Cape Breton chose to be represented by the Eastern

Institutional Workers Union, which later became a local union of the Canadian

Brotherhood of Railway Employees and General Workers Union (CBRT), which merged

with the National Automobile, Aerospace, Transportation and General Workers Union of

Canada that became the Canadian Auto Workers (CAW), which is now Unifor after a

2013 merger.

[46]

At the same time, Yarmouth employees chose the National Union of Public

Employees, Local 835 that is now the Canadian Union of Public Employees, Local 835.

Other CUPE local unions were selected by employees at hospitals across the province

outside the Halifax area.

[47]

Through employee choice verified by the Labour Relations Board these unions

acquired exclusive rights to represent all classifications of employees in community

hospitals except Registered Nurses. They represented Certified Nursing Assistants, the

predecessor classification to Licensed Practical Nurses.

[48]

Exclusive trade union representation is based on verified or agreed majority

support among a group or unit of employees for whom the union negotiates a collective

agreement and enforces employer compliance with the agreement. The Trade Union

Act defines a “unit” as:

“unit” means a group of two or more employees and “appropriate for collective

bargaining” with reference to a unit, means a unit that is appropriate for such

purposes whether it be an employer unit, craft unit, technical unit, plant unit or

⁴⁰Judge Alexander H. MacKinnon, Report of Fact-Finding Body Re: Labour Legislation, February 1,

1962, p.43

13

any other unit and whether or not the employees therein are employed by one or

more employers⁴¹

[49]

A group of employees appropriate for collective bargaining does not have to be

the most or ideal grouping of employees. As unions applied and gained certification to

represent bargaining units of hospital employees, the Labour Relations Board, like other

North American boards, certified various employee groupings.

[50]

In the early days of organization and representation in an industry or industrial

sector, labour relations boards followed a building block approach in setting bargaining

structures. The boards balanced short term employee access to collective bargaining

against long term industrial stability. Various factors influenced the shaping of units.

One of many statements of these factors is the following from a decision involving a

hospital by the Ontario board:

. . . [W]hat then is the purpose of the concept of the "appropriate bargaining

unit"? Quite simply, it is an effort to inject a public policy component into the

initial shaping of the collective bargaining structure, so as to encourage the

practice and procedure of collective bargaining and enhance the likelihood of a

more viable and harmonious collective bargaining relationship. . . . It is, as we

have noted, a matter of balancing competing considerations, including such

factors as: whether the employees have a community of interest having regard to

the nature of the work performed, the conditions of employment, and their skills;

the employer's administrative structures; the geographic circumstances; the

employees' functional coherence, or interdependence or interchange with other

employees; the centralization of management authority; the economic

advantages to the employer of one unit versus another; the source of work; the

right of employees to a measure of self-determination; the degree of employee

organization and whether a proposed unit would impede such organization; any

likely adverse effects to the parties and the public that might flow from a

proposed unit, or from fragmentation of employees into several units, and so

on.⁴²

[51]

Labour relations boards also deferred to bargaining unit boundaries agreed

between a union and employer.

⁴¹Trade Union Act, s. 2(1)(x)

⁴²Hospital for Sick Children, 1985 899 (ON LRB), ¶ 17. See also Adams, Canadian Labour Law,

loose-leaf, Chapter 7 para 7.30-7.262; University of King’s College Teachers’ Association v. University of

King’s College, 2011 NSLB 61 (),¶ 47, 56 - 60; National Automobile Aerospace, Transportation and

General Workers Union of Canada (CAW-Canada) v LeHave Manor Corporation, 2012 NSLB 181

().¶ 1; Canadian Union of Public Employees Local 2330 v Highcrest Place Ltd, 2012 NSLB 109

(), ¶ 18 - 19

14

3.1

Four Standard Hospital Bargaining Units is Labour Board Policy

[52]

The result is it was a combination of decisions by the Nova Scotia Labour

Relations Board and private agreements between unions, employers and governments

that created the current landscape of hospital bargaining units and union representation

in acute health care.

[53]

On October 29, 1973, the Labour Relations Board moved to standardize future

hospital bargaining units. This was also happening in other North American

jurisdictions.

The Labour Relations Board (Nova Scotia) wishes to announce guidelines in the

determination of appropriate units for applications for certification in hospitals.

The guidelines, set out below, are for the convenience of all parties concerned in

applications for certification. They in no way affect existing bargaining units

except, possibly, on an application to amend a Board Certification Order.

The Board will continue to exercise its discretion in considering appropriateness

of the bargaining unit in every individual application by a union for certification as

bargaining agent on behalf of hospital employees. However, if a union applies

for a bargaining unit that departs from the guidelines, it will be called upon to

satisfy the Board that, under the circumstances, the unit requested is

appropriate. In a small hospital or nursing home, for instance, the Board might

conclude that a broader unit, or even an all employee unit, is appropriate.

Employees excluded by Section 1(2) of the Trade Union Act of Nova Scotia will

,

of

course, not be included in any unit.

In the absence of grounds which lead the Board to conclude otherwise the

following hospital bargaining units will be considered appropriate:

1. Nurses - all registered or graduate nurses and specialized nurses, such as

psychiatric nurses, working in their speciality.

2. Health Care Employees - all employees directly concerned with the treatment

of patients.

Without limiting the generality of the foregoing, specifically included are

certified nursing assistants, nursing assistants, nurses' aides, orderlies,

technicians, dieticians, pharmacy clerks, medical records staff, and

therapists.

3. Office Employees - all employees performing duties of a primarily clerical,

bookkeeping or secretarial nature.

Where employees are performing clerical, bookkeeping or secretarial duties

in particular departments of the hospital under circumstances which

demonstrate a community of interest with other employees in those

departments, the Board may find them to be appropriately included in a unit

other than a unit of office employees.

4. Residual - all other employees working in or out of the hospital.

15

Without limiting the generality of the foregoing, specifically included are the

kitchen, housekeeping and dietary staff.⁴³

[54]

Today, there are no registered psychiatric nurses in Nova Scotia. Consistent

with the practice at the time elsewhere in Canada, the Nurses unit did not include

certified or other nursing assistants. Nursing assistants were included in the Health

Care unit.

[55]

The distinct character of the Health Care unit is that it is a grouping of employees

“directly concerned with the treatment of patients.” This group of non-nursing clinical

employees is not limited to the twenty self-regulating health care occupations in Nova

Scotia.⁴⁴It is not limited to what is referred to as “allied health professionals.” It is not a

unit of all professionals except doctors and nurses, sometimes called a paramedical

professional unit. It includes technicians, which in some jurisdictions are in a separate

unit of technician or paramedical technicians. The Health Care unit includes orderlies

and medical records staff.

[56]

Being “directly concerned with the treatment of patients” has been broadly

construed. It includes all health care employees with hands on patients, such as

orderlies, and members of the team two or three steps removed from hands on patient

care, such as pharmacy clerks and medical records staff.

[57]

Other provincial labour relations boards took other approaches. To varying

degrees multiple hospital craft units were initially certified and then later not allowed in

an effort to limit the proliferation of bargaining units and to rationalize collective

bargaining structures. Some non-standard and anomalous units eventually

disappeared with health care regionalization and restructuring.

[58]

In some jurisdictions, increased credentialization of technical occupations and

professionalization of proliferating health occupations created occupational

convergence and conflict over the boundaries between paramedical professionals and

paramedical technicians and the proper grouping assignment for individual occupations.

This was avoided in some provinces, like Nova Scotia, which had adopted four or fewer

standard units.

⁴³Hospital Bargaining Units, LRB Policy and Procedure Statement # 023-001-073, October 29, 1973

⁴⁴See the list and statutes in Regulated Health Professions Network Act, S.N.S. 2012, c. 48

16

[59]

The Nova Scotia Board’s approach made Health Care the principal unit after

nurses and included, in some circumstances, employees performing clerical, secretarial

and bookkeeping duties, who were regarded not as “clerical”, but as administrative

employees or professionals.

[60]

The third unit of Office employees was a grouping of employees outside clinical

departments. Over time, the parties have called this unit the Clerical unit. The NSGEU

collective agreements referred to the unit as “Office / Administrative Professional.”

[61]

The fourth Residual unit was for the remaining employees. On November 17,

1997, the Board changed the name of this bargaining unit to “Service Support.”⁴⁵

Kitchen, housekeeping and facility maintenance employees are in this unit.

[62]

The four hospital unit approach was fashioned within the Board’s jurisdiction

under the Trade Union Act when the affected facilities were primarily in smaller

communities. However, it was easily adaptable to regional hospitals.

[63]

When describing some of the North American experience in defining bargaining

unit groupings of employees for restructuring in Saskatchewan in 1997, I began with

Nova Scotia.

The models for appropriate bargaining unit configurations in health in Canada

and the United States are varied. In 1973 the Nova Scotia Board adopted four

standard units for hospital - nurses, health care employees directly concerned

with patient treatment, office, and all others. The 1974 Ontario Report of Hospital

Inquiry Commission recommended that future certifications recognize only three

units for employees in public hospitals - service, nursing and paramedical. It also

recommended that the existing craft units of operating engineers be eliminated.

In Alberta, initial organizing was on craft lines. The Board moved to broader

units and finally in 1976 to five standard units - direct nursing care, auxiliary

nursing care, paramedical professional, paramedical technical and general

support services. In community health units it limited the bargaining units to

three - nursing, professional and support.

In Newfoundland there are four units - nurses, allied health professionals,

laboratory and x-ray technicians and support staff. In New Brunswick the units

were legislated and there are eight - technical/paramedical, scientific and

professional, three groups of administrative, administrative support, patient

services and institutional services. The British Columbia Labour Relations Board

adopted a practice in the 1970's of three units - nurses, paramedical

professionals and all other employees.

In the U.S. a special rulemaking process in 1989 determined eight units for

hospitals - registered nurses, physicians, professionals except nurses and

⁴⁵Queen Elizabeth II Health Sciences Centre, LRB #4453 Interim II,

17

physicians, technical, skilled maintenance, business office clerical, guards and all

other non-professional.

In jurisdictions where it was adopted, a policy of standard or predictable unit

configuration has generally facilitated organizing by enabling unions to know

which employees to organize. It has facilitated collective bargaining because the

uniformity fosters province-wide agreements.⁴⁶

[64]

When the Nova Scotia Board was pioneering standardized units for hospitals,

there continued to be union acquisition of bargaining rights by employer voluntary

recognition. As a consequence, the scope of some voluntarily recognized hospital

bargaining units varied from standard units. This happened across the province in

1997. A fifth, non-standard bargaining unit was agreed without reference to the Board

when the provincial government devolved programs to district health authorities.

[65]

The presumptively appropriate bargaining units did not prevent the Board from

making variations in some situations. However, after a public meeting in January 1981

to discuss hospital units, the Board reaffirmed the guidelines as the preferred but not

inflexible bargaining units.

The Labour Relations Board (Nova Scotia) wishes to announce two matters of

general policy following its study of its guidelines for hospital bargaining units of

October 29, 1973.

1. The Board has considered the guidelines for dealing with Hospital Bargaining

Units issued by it on October 29, 1973, and has decided not to alter them.

2. The Board, in determining who are regular part-time employees to be

included in a hospital bargaining unit, shall have regard to the special skills

required, the shift requirements, the regularity of shifts worked and the hours

worked during a significant test period. If the hours worked average two shifts

or more per week during the test period, the Board will normally include such

employees in the unit.⁴⁷

[66]

Some Canadian legislation expressly allowed labour relations boards to

determine whether one classification of employees would be in one of two units on the

basis of the majority of the employees’ wishes as expressed in a vote among the

employees in the classification.⁴⁸

[67]

Some Nova Scotia unit boundary decisions were based on Board directed or

agreed representation votes among employees in merged bargaining units. For

example, in 1996 on application to the Board to declare the Western Regional Health

⁴⁶James E. Dorsey, Health Labour Relations Reorganization Commission, Reorganization of

Saskatchewan`s Health Labour Relations, January 15, 1997, pp. 61 - 62

⁴⁷Hospital Bargaining Units, LRB Policy and Procedure Statement # 023-002-081, February 28, 1981

⁴⁸E.g., Labour Relations Act,1995, S.O. 1995, c. 1, s. 9(1)

18

Board a successor employer to the Health Services Association of the South Shore,

Yarmouth Regional Hospital and Valley Regional Health Board, it was agreed there

would be four bargaining units and representation votes by employees choosing among

unions representing employees. It was also agreed by the employer and unions that

Licensed Practical Nurses at ten acute care facilities would have a separate vote to

choose to be included in a bargaining unit with Nurses or in a Health Care unit.⁴⁹They

voted to remain with the Health Care unit and be represented by a CUPE local union.

3.2

Licensed Practical Nurses in both Health Care and Nurses Units

[68]

Not all Licensed Practical Nurses made this choice before and since 1996. One

inconsistent result is varied inclusion or exclusion of Licensed Practical Nurses,

previously Certified Nursing Assistants, from Nurses units. Then as now, the Trade

Union Act provided: “The Board in determining the appropriate unit shall have regard to

the community of interest among the employees in the proposed unit in such matters as

work location, hours of work, working conditions and methods of remuneration.”⁵⁰

[69]

The Nova Scotia Nurses’ Union (NSNU) was founded in 1976 to represent

Registered and Graduate Nurses. Formerly, it was a component of the Registered

Nurses Association of Nova Scotia negotiating terms and conditions of employment. In

June 1980, the NSNU changed its constitution to include representation of Certified

Nursing Assistants. In 2005, the NSNU extended representation to Nurse Practitioners.

[70]

This was in contrast to what was happening in Ontario and other provinces.

. . . [F]or the purposes of collective bargaining, RNA's [Registered Nursing

Assistants] have regularly and routinely been included in the service bargaining

unit, even though there might be a plausible claim to group them together with

RN's or perhaps with paramedical/technical employees.

The precise rationale for this established practice is not entirely clear, and may

have more to do with the historical evolution of collective bargaining in the health

care sector than any calculated assessment of what would ultimately be the most

rational "shape" for the collective bargaining structure. Registered nurses had an

early and active appetite for collective bargaining through an organization (the

Ontario Nurses' Association – "ONA") which catered exclusively to the interests

and concerns of their own professional group. ONA was not interested in, or

able under its constitution, to represent anyone other than registered nurses,

⁴⁹News Release To The Western Region, November 26, 1996

⁵⁰Section 25(14)

19

and, at the time, the role of the RNA may not have been as developed, defined,

or regulated as it is today.⁵¹

[71]

The NSNU change to its constitution initiated Licensed Practical Nurse

bargaining unit inconsistency. It began in April 1981 when a four member majority of a

five member Labour Relations Board panel acceded to the wishes of a group of

previously unrepresented Certified Nursing Assistants at the Highland View Regional

Hospital (founded in 1903 on donated land after a typhoid outbreak in the Amherst area)

to be added to an existing Nurses unit. The Board included the Certified Nursing

Assistants without holding a vote among them and against the Board’s preference.

Notice the union composition of the unit represented by CUPE, Local 920.

The Board would have preferred that the Certified Nursing Assistants should join

the CUPE unit, Local 920, which was a bargaining agent at the hospital for five

full-time and four part-time nursing assistants, twelve laboratory technicians, four

X-Ray technicians, two respiratory technicians, a health record technician,

seventeen clerk-typists, three full-time and three part-time P.B.X. Operators,

three cooks, twenty full-time and four part-time general workers, nine full-time

and two part-time utility workers, five engine operators and four general

maintenance tradesmen, in late November, 1980.

The CNA's however, showed no preference to join the CUPE local. Their wish

was to join the Registered Nurses' Union. The latter had altered its constitution

to admit of such membership and by a majority vote indicated it would accept

CNA's. There was no evidence to indicate that the CUPE local had tried to sign

up the CNA's. …

In considering whether there is a community of interest, the Board has examined:

(1) the seven departments within the 113-bed hospital; (2) the participation on a

“team unit” basis of CNA's except in one of those seven departments, that of

intensive care; (3) the similarities in work assignments and the differences; (4)

the lines of authority; (5) the growing assumption of responsibilities by and the

job functions of CNA's; (6) the common factors of their working conditions

including location and hours and benefits; (7) the professional standards for RN's

and CNA's.

Having weighed the pros and cons of all these factors, the majority of the Board

finds that there is a community of interest between the RN's and the CNA's at

this hospital, and that it is appropriate to include the CNA's in the Nurses' local.

A caveat. This decision is not to be construed as in any sense supporting the

breaking up of existing units in the Group 2 category.⁵²

[72]

The dissenting employer member of the Board was unwilling to create a

precedent and deviate from the hospital unit guidelines.

It is the community of interest theme which is the chief criteria adopted by most

Labour Relations Boards in Canada when using any guideline to determine the

⁵¹Hospital for Sick Children, 1985 899 (ON LRB), ¶ 36 - 37

⁵²Highland View Regional Hospital, April 14, 1981, LRB #2719

20

appropriateness of the bargaining unit. The Labour Relations Law Casebook,

Queens University, breaks down community of interest into the following sub-

headings: (a) Nature of Work Performed, job description. (b) Conditions of

Employment. (c) Skills of Employees, education, training. (d) Administration

Responsibilities. (e) Geographic Circumstances. (f) Functional Coherence and

Interdependence.

The statutory admonishment in Sec. 24 (14) apparently adds several more

examples to the above list. (See also test criteria in Health Services Association

(1975) 1 C.L.R.B.R. 82 attached).

In responding to the above six criteria only (b) conditions of employment and (e)

geographic circumstances are fundamentally the same for Registered Nurses

and Certified Nursing Assistants in this case. Evidence introduced at the hearing

indicates a lack of community of interest in the other four headings.

The formal job descriptions introduced at the hearing by the hospital were not

challenged by the solicitor for the Nurses' Union and must therefore be assumed

to be accurate. There are major differences in those job descriptions. Evidence

from witnesses supported the argument of the differences in work performed as

between Registered Nurses and Certified Nursing Assistants and I believe that

the case cannot withstand this test.

In considering the skills of employees, education, and training, the expert witness

presented by the solicitor for the Nurses' Union indicated that training for Certified

Nursing Assistants has just been reduced to a ten-month program while the

nurses' training is a full two-year program. This expert witness also indicated in

testimony that a trend is developing for registered nurses to continue to a

Baccalaureate Degree. In other words the formal training program for nurses is

being expanded by the registered nurses themselves. It is therefore obvious that

there is no community of interest between Certified Nursing Assistants and

Registered Nurses in the area of skills, education and training and in fact there is

a widening of this training gap.

In consideration of administration responsibilities, evidence introduced in the

case indicated that Certified Nursing Assistants are subservient to Registered

Nurses. Certified Nursing Assistants have no opportunity for promotion at any

level while Registered Nurses, on the other hand, not only are able to supervise

Certified Nursing Assistants in the normal daily functioning of the hospital but

have opportunities for advancement into a number of supervisory positions.

It was obvious from the testimony presented at the hearing that there is not really

functional coherence and interdependence between Registered Nurses and

Certified Nursing Assistants. While both work together in a number of areas

throughout the hospital in a team approach to nursing care it was obvious from

the evidence that Certified Nursing Assistants do not and cannot replace

Registered Nurses in the health delivery system. Registered Nurses however

may and do replace Certified Nursing Assistants. Again I find there is no

community of interest.

In the matter of precedents of the Nova Scotia Labour Relations Board this is the

first case where Certified Nursing Assistants and Registered Nurses are being

allowed to form into a single bargaining unit. (There may have been cases of all

employee units prior to 1973.) In the history of Registered Nurses appearing

before the Labour Relations Board of Nova Scotia since the late 1950's first as

an Association and since 1976 as a Union, this is the first time that Registered

Nurses have requested that Certified Nursing Assistants be brought into their

21

bargaining unit. The evidence indicated that until June, 1980 the Nurses' Union

under the terms of their own constitution could not request this action.

The Health Care Guidelines established in 1973 by this Board and reaffirmed in

March, 1981 were developed in recognition of the need to create a harmonious

environment in the health care field and part of that harmonious environment was

the recognition that Registered Nurses considered themselves to be professional

and should not be considered as appropriate members of a bargaining unit with

other workers in the health care field.

Evidence from the expert witness of the Nurses' Union indicated that

professionalism came as a result of formal training programs and the same

witness indicated a widening of the gap in the formal training programs between

Registered Nurses and Certified Nursing Assistants.

No Evidence was

introduced to indicate that Registered Nurses now consider themselves to be

less professional or that Certified Nursing Assistants consider themselves to be

more professional than they were in prior hearings before this Board. The only

evidence in this area was the indication that the Constitution of the Nurses' Union

had been changed in June, 1980.

It would seem that in order to deviate from the guidelines which have been in

place for almost a decade there would need to be stronger evidence of

community of interest before Certified Nursing Assistants should be considered

as members of the same unit for bargaining purposes.⁵³

[73]

The employer applied to the Nova Scotia Supreme Court to quash the Board’s

decision. Its application was dismissed. The employer appealed. The Court of Appeal

dismissed its appeal. The Court of Appeal found the Board knew the employees’

wishes and was not required to conduct a vote among the Certified Nursing Assistants

to determine whether they wished to be added to the Nurses unit.

This does not mean that a vote may never be taken on an application to amend

certification, but rather that the Board under the authority vested in it under

Regulation 20 may direct a vote where there is doubt that the wishes of the

employees is to have the applicant trade union certified as their bargaining agent.

The Board in this case made no such direction as it was apparent from the

record that the employees wished to join the Registered Nurses' Union.⁵⁴

[74]

Today, Regulation 20(2) states:

An application to amend a certification order to include specific additional

classifications of employees in the unit or to combine previous certification orders

into one order shall be made in a form approved by the Board and verified by

statutory declaration, and, subject to the direction of the Board, shall be

processed as an Application for Certification.⁵⁵

⁵³Highland View Regional Hospital, April 14, 1981, LRB #2719 (Supplementary)

⁵⁴Highland View Regional Hospital v. Highland View Regional Local of the NS, Nurses’ Union [1982]

N.S.J. No. 419, ¶ 23

⁵⁵Trade Union Procedure Regulations made under Sections 18 and 94 O.I.C. 72-933 (August 29, 1972),

N.S. Reg. 101/72 as amended up to O.I.C. 2010-359 (September 28, 2010), N.S. Reg. 148/2010

22

[75]

The inclusion of Licensed Practical Nurses in either of two bargaining units

became enshrined. In 1995, the Board amended its hospital bargaining unit policy.

An amendment is required in the 1973 Guidelines to reflect the change to the

Nurses constitution to include Certified Nursing Assistants. As a result C.N.A.'s

are considered appropriately included in any certification application by the Nova

Scotia Nurses Union. This, however, does not exclude C.N.A.'s from the Health

Unit or from being represented by another union.⁵⁶

If Licensed Practical Nurses were appropriately included in either of two units, then the

best way to determine which unit in any situation was to ask Licensed Practical Nurses

their wishes through a representation vote.

[76]

Today, the NSNU represents one-quarter (572) of the Licensed Practical Nurses

(2,217) in acute care. Over time, the NSNU negotiated a single collective agreement

with all district health authority employers and the IWK Health Centre covering the

Registered and Licensed Practical Nurses it represents.

[77]

Licensed Practical Nurses are in Nurses and Health Care bargaining units in all

nine district health authorities. They are in the Health Care unit at IWK Health Centre.

Registered and Licensed Practical Nurses are also in the fifth non-standard bargaining

unit in eight district health authorities and a sixth non-standard bargaining unit in one

district health authority.

3.3

Government Creates Public Health and Addiction Services Unit in 1997

[78]

In 1997, the provincial government devolved drug dependency and public health

services from the Department of Health to regional health boards. Provincial civil

service employee members of NSGEU providing the services became regional health

board employees.

[79]

There were no successor rights provisions in the Trade Union Act governing

devolution of a service from the provincial government as employer. The NSGEU, the

provincial government and regional health boards agreed to the devolution and each

regional health boards entered into a voluntary recognition agreement with NSGEU.

[80]

These agreements created a fifth bargaining unit outside the scope of the four

standard units under the Labour Relations Board’s guidelines.

⁵⁶Hospital Bargaining Units, LRB Policy and Procedure Statement # 023-003-095

23

[81]

When the regional health boards were replaced by district health authorities,

eight districts inherited this fifth bargaining unit, which includes both Registered and

Licensed Practical Nurses represented by NSGEU.

[82]

In 1997, CUPE Local 2611 was certified to represent a unit of employees of the

South Shore Drug Dependency program.⁵⁷By 2003, the program had been absorbed

by the South Shore District Health Authority and the union was CUPE, Local 1933.

[83]

By this route, the South Shore District Health Authority became the only district

health authority with six bargaining units of employees. CUPE, Local 1933 represents

both Registered and Licensed Practical Nurses.

3.4

Halifax Regional Municipality: Four Standard Units with More Employees

[84]

From 1973 to 2000 in the geographic areas of eight district health authorities

where community hospital employers were replaced by regional boards and then district

health authorities, there evolved relatively consistent trade union representation and

bargaining unit composition around the four standard hospital units. The notable

exception was the inclusion of Licensed Practical Nurses in Health Care and Nurses

units and the fifth Public Health and Addiction Services units created in 1997.

[85]

In this rural labour relations landscape NSNU represented Registered Nurses

and a minority of Licensed Practical Nurses. CUPE local unions represented

employees in Health Care, Office (Clerical) and Service Support units. Unifor local

unions represented employees in the Service Support unit in the Guysborough

Antigonish Strait district and employees in both Health Care and Service Support units

in Cape Breton.

[86]

In South Shore, South West Nova and Annapolis Valley districts, the NSGEU

represents the three Office units. This anomaly in the rural landscape is the result of

employee choice in a representation vote when the three districts were the Western

Regional Health Board. The employees chose the NSGEU instead of a local of CUPE

or the International Union of Operating Engineers.⁵⁸

⁵⁷South Shore Drug Dependency Program, February 5, 1997, LRB # 4469

⁵⁸Western Regional Health Board, November 14, 1997, LRB #4453 Interim Order II

24

[87]

In the Halifax Regional Municipality the route to the current urban landscape was

consolidation of community based and devolved provincial government facilities.



Capital District Health Authority

[88]

The Nova Scotia Civil Service Association, the predecessor to the NSGEU, was

founded in 1958. In time, legislation formalized the relationship between the

government and the union and established a closed collective bargaining system

between the union and provincial government employer with some unique

characteristics. The legislation includes statutory certification of the NSGEU as the

exclusive bargaining agent for civil service employees.

[89]

Similar legislated formalization of relationships happened for teachers⁵⁹and

highway⁶⁰workers. These collective bargaining schemes are outside the Trade Union

Act processes for employee choice, selection of a bargaining agent and impartial and

independent certification by a tribunal guarding against employer interference or

participation in employees’ exercise of their rights.⁶¹As an aside, it has not been

argues this legislation formalizing an existing relations is state creation of a monopoly

union contrary to the employees’ freedom of association.

[90]

The provincial government bargaining units were civil servant occupations

grouped by classifications and pay plans. In the past, there were nine units. Currently

there are eight in Schedule A to the Civil Service Collective Bargaining Act.

1. Health Services Classification and Pay Plan - (HSA)

2. Health Services Classification and Pay Plan - (HSB)

3. Health Services Classification and Pay Plan — Nursing Services Personnel (HSN)

4. Education Classification and Pay Plan - (EDA-EDB)

5. Service Classification and Pay Plan - (SE)

6. Maintenance and Operational Services Classification and Pay Plan - (MOS)

7. Technical Classification and Pay Plan - (TE)

8. Professional Classification and Pay Plan - (PR)

9. Clerical and Related Classification and Pay Plan - (CL)

⁵⁹Teachers Collective Bargaining Act, R.S.N.S. 1989, c. 460

⁶⁰Highway Workers Collective Bargaining Act, S.N.S. 1997, c. 1 (since 1973)

⁶¹See Nova Scotia Government Employees Association et al. v. Civil Service Commission of Nova Scotia

et al., [1981] 1 S.C.R. 211; Nova Scotia Government Employees' Union Act S.N.S. 1973, c.136; Civil

Service Collective Bargaining Act, R.S.N.S. 1989, c.71

25

[91]

The NSGEU’s representation of civil servants at Victoria General Hospital, Nova

Scotia Hospital and the Department of Health Drug Dependency and Public Health

Program conformed to these groupings, not the Labour Relations Board’s four standard

hospital bargaining units. At the Nova Scotia Foundation for Cancer Treatment the

NSGEU represented an all employee unit.

[92]

When the provincial government acquired and devolved facilities bargaining unit

composition was a mix of the standard hospital units and civil service unit configuration.

1978

 Camp Hill Hospital was created to take over a federal government facility.⁶²The

Public Service Alliance of Canada (PSAC) followed its members and became an

active union in the provincial sector.⁶³The NSNU represented the Registered

Nurses. PSAC represented employees in the other three standard bargaining

units.

1982

 Camp Hill Hospital amalgamated with Abbey J. Lane Memorial Hospital, which

the province purchased in 1981. Following Board supervised votes, PSAC and

NSNU were certified to represent groups of employees. Locals of the

International Union of Operating Engineers and CUPE were displaced.⁶⁴

1989

 Camp Hill Hospital amalgamated with Halifax Infirmary. After employee

representation votes, the Labour Relations Board certified the NSNU, NSGEU

and CBRT&GW to represent employees of Camp Hill Medical Centre in the four

standard hospital bargaining units.⁶⁵

62

Camp Hill Hospital Act, S.N.S. 1978

⁶³LRB #2455, 2456 and 2457

⁶⁴Camp Hill Hospital, LRB #2835, January 19, 1982

⁶⁵Camp Hill Medical Centre, LRB #3500, April 1, 1989

26

1996

 Queen Elizabeth II Health Sciences Centre was established by legislation⁶⁶

which merged Victoria General Hospital, Camp Hill Medical Centre, Cancer

Treatment and Research Foundation of Nova Scotia and the Nova Scotia

Rehabilitation Centre. Queen Elizabeth ll Health Sciences Centre is the largest

provider of acute care health services in Nova Scotia. It provides specialized

tertiary and quaternary care and primary care to a third of the population of Nova

Scotia. It is a referral centre for Atlantic Canada. The employer and union

agreed to include the Technical, Professional and Health Service Classifications

and Pay Plans in the Civil Service into the Health Care unit, which they treated

as a catch all or residual unit. That agreement and its effects reverberate in this

mediation-arbitration.

 Certified Nursing Assistants voted to be included in the Health Care unit where

the NSGEU had overwhelming support. Employees selected the NSGEU in

votes in each of the four standard units. It was certified as bargaining agent for

each of the four. Several secretary positions were included in the Office unit.⁶⁷

1997

 The Dartmouth General Hospital and Community Health Centre, Eastern Shore

Memorial Hospital, Hants Community Hospital, Twin Oaks Memorial Hospital,

Musquodobit Valley Memorial Hospital and Cobequid Multi Service Centre

merged to form the Central Regional Health Board. The NSNU represented

Registered Nurses and Licensed Practical Nurses at each and continued to

represent them without a vote. After two votes, the Board certified a local of the

Canadian Auto Workers for the Service Support unit and no union for the two

other units.⁶⁸A year later, the NSGEU organized the employees in the

unrepresented Health Care and Office units. The Board supervised votes and

certified the NSGEU for both two units.⁶⁹

⁶⁶Queen Elizabeth II Health Sciences Centre Act S.N.S. 1995-96, c. 15

⁶⁷Queen Elizabeth II Health Sciences Centre, January 30, 1998 and October 11, 1998, LRB #4580

(Interim 1 and 2)

⁶⁸Central Regional Health Board, February 23, 1998, LRB #4586 (Interim 1)

⁶⁹Central Regional Health Board, January 21, 1999, LRB # 4678 and LRB #4679

27

 The Province devolved drug dependency and public health services from the

Department of Health to regional health boards. Provincial civil service

employees providing the services became regional health board employees.

Voluntary recognition agreements created a fifth bargaining unit in all of the

boards outside the scope of the four standard hospital units.

2000 - 2003

 The four regional boards were restructured as nine district health authorities.⁷⁰

The Northern, Western and Eastern regional health boards were divided into

eight district health authorities, which inherited the existing five bargaining units

from the boards. Generally, employees retained their representation and

membership in the same unions. With the split of the Eastern Regional Health

Board into three district authorities, CUPE and CAW and the Cape Breton District

Health Authority entered a transfer agreement which transferred Health Care unit

employees from a CUPE local union to what is now a Unifor local union.⁷¹CUPE

also transferred Clerical union employees between Locals 2525 and 2431.

 The Central Regional Health Board was merged with the Queen Elizabeth II

Health Sciences Centre and the Nova Scotia Hospital to form the Capital District

Health Authority. The Capital District Health Authority and NSGEU had 15

collective agreements for 15 bargaining units, which they agreed to merge by

expanding the four units at the Queen Elizabeth ll Health Sciences Centre. The

expansion maintained the anomalous nature of the Health Care unit. The CAW

Local and NSGEU agreed to merge the Service Support units of the Queen

Elizabeth ll Health Sciences Centre and former Central Regional Health Board

and have the Board hold a representation vote. The employees chose the

NSGEU.⁷²The Board ordered dovetailing of seniority.⁷³The NSGEU withdrew

its application to have all nurses in a single bargaining unit.⁷⁴The result is the

Capital District Health Authority has five bargaining units. The NSGEU

⁷⁰The Health Authorities Act, S.N.S. 2000, c. 6

⁷¹Wayne Thomas Affidavit, December 5, 2014, Exhibit B

⁷²Capital District Health Authority, February 7, 2003, LRB #5034, Interim 1

⁷³Capital District Health Authority, March 1, 2003, LRB #5034, Amended

⁷⁴Capital District Health Authority, September 24, 2003, LRB #5034, Final Order

28

represents employees in the four standard units. The NSNU represents

employee in a fifth unit of Registered Nurses in hospitals formerly part of the

Central Regional Health Board.



IWK Health Centre

[93]

In 1995, the lzaak Walton Killam Hospital for Children and the Salvation Army’s

Grace Maternity Hospital merged to create the Izaak Walton Killam - Grace Health

Centre for Children, Women and Families. After holding representation votes among

employees, the Labour Relations Board certified the NSNU to represent a unit of

Registered Nurses. Licensed Practical Nurses were given a choice to be in the Nurses

unit represented by the NSNU or the Health Care unit represented by the NSGEU. A

majority who voted chose to be in the Health Care unit. The Board certified the NSGEU

for the Health Care and Office units and the CBRT&GW (now Unifor) for the Service

Support unit.⁷⁵

3.5

Current Representation Landscape: Bargaining Units and Employees

[94]

The resulting bargaining unit and trade union representation characterised as

complex, inefficient, costly and an impediment to effective acute health care service

delivery is depicted in the following table using employer supplied employee data at

November 25, 2014. This is the most current, reliable employee data available.

[95]

The NSNU has as members a majority of the Registered and Licensed Practical

Nurses in the ten Nurses bargaining units.

[96]

Because of the number of employees in the Capital District Health Authority, the

NSGEU has as members a majority of employees in the ten Health Care and Clerical

units. It has as members a majority of the employees in the Public Health and

Addictions Services units. No union has as members a majority of the employees in the

Service Support unit.

[97]

This landscape of employee groupings into bargaining units and representation

in the nine district health authorities is to be streamlined with consolidation into a single

provincial health authority employer.

⁷⁵Izaak Walton Killam-Grace Health Centre for Children Women & Families, September 16 and

November 5, 1996; February 27, 2990 LRB #4405 (Interim 1, 2 and 3) and April 19, 1999, LRB #4712

29

[98]

A central focus of the labour relations restructuring legislation and the mediation-

arbitration process concerns Registered and Licensed Practical Nurses. Their

combined total is over 40% of the total unionized employees.⁷⁶

[99]

Including all Registered and Licensed Practical Nurses from existing bargaining

units into one unit impacts all units they leave.

⁷⁶“unionized employee” is defined in s. 2(1)(zl) as “an employee who is represented by a union”

30

Table 1: DHA Units – Approx. Employee Numbers – November 25, 2014

Total by

Union

Total by

Group

Employer

Nurses

SSDHA

SWNDHA

AVDHA

CEHDHA

CHA

PCHA

GASHA

CBDHA

CDHA

297

295

428

343

299

357

396

1,081

NSNU

4,179

NSNU

683

NSNU*

NSNU

6,726

7,761

3,096

2,966

2,547

NSGEU

2,547

NSGEU

3,904

NSGEU

2,599

CUPE

1,258

Unifor

2,030

NSGEU

1,066

CUPE

1,216

NSGEU

995

NSGEU

452

519

593

300

190

253

292

Health Care

Clerical

CUPE

1,258

Unifor

152

192

237

1,449

NSGEU

151

131

122

149

513

CUPE

1,216

NSGEU

176

233

206

120

133

127

Service

CUPE

755

210

545

Unifor

64

NSGEU

52

93

102

93

78

83

153

255

921

NSGEU

52

Public Health /

Addiction

NSGEU

973

Services

CUPE

1,193

NSGEU

1,332

10,618

1,565

1,000

CUPE

831

4,712

939

1,197

NSNU

3,653

4,179

9,821

21,522

2,013

Totals

Unifor

49.34%

21.89%

19.42%

9.35%

* NSNU represents employees at Cobequid Multi-Service Centre, Dartmouth General Hospital, Eastern Shore Memorial Hospital, Hants Community Hospital,

Musquodobit Memorial Hospital, and Twin Oaks Memorial Hospital

31

3.6

Current Collective Agreements: Number, Coverage and Expiration

[100] The current district health authority bargaining unit configuration of 46 bargaining

plus four units at IWK Health Centre could, but does not, have 50 collective

agreements. Over the years, the unions and employers recognized it was redundant

and wasteful to have concurrent or sequential collective bargaining at separate

77

bargaining sessions for each district health authority.

[101] NSNU, NSGEU and CUPE and Unifor local unions are the trade unions under

the Trade Union Act that are the certified and voluntarily recognized bargaining agent

parties to the collective agreements. NSNU has one province-wide agreement with all

ten employers. Some locals collaborate to negotiate one collective agreement with

several employers.

Table 2: Collective Agreement Distribution

Bargaining

Unions

Employers

Agreements

Expiry

Units

9 DHAs &

IWK

NSNU

1

31-Oct-14

Nurses (2)

NSGEU

1 DHA

IWK

1

31-Oct-14

Health Care (4)

Clerical (3)

CUPE Locals 835,1933,

2525 and 4150

Unifor Local 4600

7 DHAs

1

31-Oct-14

1 DHA

4 DHAs

IWK

1

4

1

31-Oct-14

NSGEU

CUPE Locals 2525 and

2431

NSGEU

CUPE Locals 1933,

835, 2525 and 4150

Unifor Local 4603

Unifor Local 4606

5 DHAs

1 DHA

1

31-Oct-14

Service

Support (4)

6 DHAs

2 DHAs

IWK

2

1

31-Oct-14

Public Health &

Addiction

NSGEU

8 DHAs

1 DHA

1

31-Mar-15

CUPE Local 1933

Services (2)

⁷⁷The 215 contracts referred to at page 12 of the Health Care Conversations 2014 – What We Heard

report must include contracts other than collective agreements

32

[102] For the nine district health authority employers, there are twelve collective

agreements. On average, this is one for every 1,800 employees. The number of

rounds of collective bargaining is fewer. CUPE locals negotiate their Health Care,

Clerical and Service Support agreements at one table and Unifor locals bargain their

Health Care and Service Support agreements at one tale. The labour relations

restructuring contemplates reducing the instances of collective bargaining to four. On

average, one for every 5,400 employees.

[103] For IWK Health Centre there will continue to be four bargaining units and four

collective agreements. It will be negotiating all four jointly with the provincial health

authority – “The health authorities shall engage in multi-employer collective bargaining

when negotiating collective agreements with bargaining agents in respect of bargaining

units of the same type for each health authority.”⁷⁸

[104] There could be minimal restructuring and collective bargaining at five or six

tables with a solution for representation of Nurses units in the Capital District Health

Authority (Capital Management Zone) and Health Care units in the Eastern

Management Zone. However, there would continue to be collective bargaining for the

same classification positions at more than one table. Some wonder if it will transpire

that zone management is the true functioning employer.⁷⁹Or perhaps, events will

unfold so that both health authorities become, in fact, a common employer.⁸⁰

[105] CUPE’s proposed zone-based, multi-union representation and bargaining by

three unions in one zone, two unions in two zones and three unions in one zone has not

gained traction.

[106] By April 1, 2015 all existing collective agreements will have expired. Collective

bargaining is legislatively suspended until then by the Health Authorities Act.⁸¹

[107] In the interim, the possibility of a change in union representation of bargaining

units was eliminated by suspending the operation of Trade Union Act provisions on

⁷⁸s. 26

⁷⁹For details of this approach and question see Wayne Thomas Affidavit, December 5, 2014

⁸⁰Trade Union Act, s. 21

⁸¹ss. 98 - 102

33

acquiring, amending and revoking certification and voluntary recognition during this

labour relations restructuring. Section 83(1) of the Health Authorities Act states:

Sections 23 to 26, clauses 28(1)(b) to (d) and Sections 29 to 32, 40A and 40B of

the Trade Union Act do not apply in respect of labour relations between a district

health authority, its unionized employees and the bargaining agents for those

unionized employees.

[108] The inoperable sections also cover employer and union successorship. It is

unclear why section 26 dealing with bargaining units at interdependent manufacturing

locations was included.⁸²

3.7

Arbitrated Bargaining Impasses since 2000: NSGEU and CDHA

[109] Before 2000, when employees of the Victoria General and Nova Scotia Hospitals

were part of the provincial civil service and employees of the IWK Health Centre were

not represented by a union, there were few incidences of work stoppages.

[110] An exception was the 1981 common front strike in which the NSNU did not

participate.

Hospital unions initiated a “Common Front” in 1981 to develop a co-operative

approach to negotiations for classifications including clerks, technicians, certified

nursing assistants, general workers in 36 unionized hospitals in the province. It

was agreed that no local would sign an agreement until all groups were satisfied

with the offer.

The nurses in the province were in contract negotiations while discussions to

form a Common Front were underway. They subsequently accepted the

government’s offer resulting in the Common Front losing some of its bargaining

power.⁸³

[111] A Cape Breton hospital strike in 1990 lasted ten weeks. A one day strike in 2001

by 1,200 or so Nurses and Health Care employees precipitated the introduction of

legislation.⁸⁴The NSNU had been given a strike mandate after its members rejected a

tentative agreement with the employers. Its members joined the strike begun by

members of the NSGEU. Many employees represented by NSGEU in the Nurses and

Health Care units were not in favour of striking and submitted membership resignations

to the NSGEU.

⁸²See Brian Langille, “The Michelin Amendment in Context”, (1980-81) 6 Dalhousie Law Journal 523

⁸³Nova Scotia Environment and Labour, Dispute Resolution in Healthcare and Community Services

Collective Bargaining, Discussion Paper June 2007, p. 5

http://novascotia.ca/lae/unionworkplaces/docs/DiscussionPaperHealthcare.pdf

⁸⁴Health Care Continuation (2001) Act, Bill 68

34

[112] Both the NSGEU and NSNU agreed with the government as agent for the

employers to settle the bargaining impasse by final offer selection (FOS) interest

arbitration. CUPE signed the FOS agreement but did not participate in the arbitration.

[113] To address circumstances unique to Licensed Practical Nurses’, they were

separated from other Health Care unit employee groups in the impasse resolution

process. Arbitrator Susan Ashley selected the unions’ final wage offer for Registered

Nurses and the employers’ final offer for Licensed Practical Nurses. Her decision

reports recurring issues about the role and relationship between Registered and

Licensed Practical Nurses.

The Union's main argument justifying a 13.5% wage increase for the Licensed

Practical Nurses is that the role of the LPN has changed significantly, with

increased responsibilities resulting from performing many duties that were

formerly done by Registered Nurses. This is due to the changes in the health

care system, the reduction in number of acute care beds, the increase in patient

acuity, the implementation of limited hospital stays, and the shortage of

Registered Nurses. As recognition of this changing role, there is a growing

professionalism to the role of the LPN, evidenced by recent legislative changes,

by licensing, and by more stringent education and examination requirements.

The Union argues that these factors justify a one-time adjustment to the LPN

wage rate to reflect the recent significant increase in skill, effort and responsibility

and the Employer's policy of full utilization of LPN's within their scope of practice.

At the same time, according to “Nursing Strategy in Nova Scotia: Strengthening

the Foundation" (supra), many LPN's feel that they are underutilized, and

working below their competency level. Hopefully the policy of "full utilization" will

address these concerns. In any event, it is clear that the role of the LPN is

evolving to a more highly skilled and highly professional one, in which the LPN

works together with other members of the health care team in providing the

highest quality care to the patient. LPN's are an invaluable part of the health

care system.

There is no evidence that there are any recruitment and retention problems with

LPN's at this time. While it has been suggested in the hearings that there may

be a supply problem in a few years, the Union's supporting documents (“'Nursing

in Nova Scotia: Strengthening the Foundation"(supra)) indicate that there was, at

the date of that document (August 1999) an oversupply of LPN's in the province.

Because there are no current recruitment and retention concerns for LPN's in

Nova Scotia, it is more difficult to argue that comparability, especially on a

national scale, should be a significant factor.

The Employer accepts, as do I, that LPN's perform indispensable work.

However, they suggest that, if the new job responsibilities of LPN's require wage

adjustments, this can be dealt with through other means in the collective

agreement, such as job evaluation and classification review. In the Union's view,

the classification process holds little hope for LPN's to resolve their concerns

about getting a wage rate to match their responsibilities during the life of the

collective agreement.

35

The parties are far apart in their Final Offers, and I have no authority to find the

middle (or other) ground. While the Employer has added only an additional

$750.00 lump sum to its final pre-FOS offer, the Union's Final Offer is

significantly higher than the offers they accepted in the two Tentative

Agreements. While not too much emphasis should be placed on these

agreements (they were, indeed, tentative), they do represent the best judgement

of the Union negotiators at the time as to what they could bargain from the

Employer, on wages as well as other issues. I agree with the negotiators that the

Tentative Agreement mediated by Mr. Outhouse represented a reasonable deal

in the circumstances. This second Tentative Agreement was rejected by the

membership on June 16.

The movement on both sides from that Tentative Agreement is discouraging.

The FOS process has not operated to bring the parties closer together in dealing

with the LPN's or with the Health Care unit. The Employer increased its offer by

just $750. On the other hand, the Unions increased the wage demand from what

they would have accepted in the Tentative Agreements to thirteen point five

percent (13.5%). While I anticipate that the Unions would never have accepted

the Employer's Final Offer if it had been presented in free collective bargaining, I

am equally confident that the Employer would never have agreed to pay the

LPN's thirteen point five percent (13.5%) to resolve this impasse.

In these unusual circumstances, I find that I must accept the Employer's Final

Offer. It offers a higher percentage increase to the LPN's than has been given to

other public sector employees in the province, and it places them in a competitive

wage position at fifth or sixth in the country, leading in Atlantic Canada based on

current figures. Overall, it should match the forecasted yearly inflation rate. The

LPN's are not now experiencing recruitment or retention problems. I am

reinforced in my view that the Employer's Final Offer is fair and reasonable in the

circumstances by knowledge that this was the agreement that was accepted not

once, but twice by the Union negotiators, and topped up by a further $750

payment.

I recognize that this result will further widen the wage gap between the RN's and

LPN's (as would have been the case under either the Employer's or the Unions'

Final Offer). I recognize too the danger that this could tempt cash-strapped

health care institutions to seek to download duties of RN's to lower-paid LPN's.

Such a result, should it come about, would be most regrettable.

LPN's are being called upon to play an expanding role in the delivery of vital

health care services, and have met these new demands with professionalism and

dedication. The Employer will have to be increasingly aware of the contribution

they make and be responsive to the higher expectations placed upon them, both

through the mechanisms provided in the collective agreement and in other ways.

I accept the Final Offer of the Employer in relation to the Licensed Practical

Nurses.⁸⁵

[114] In 2003, the Capital District Health Authority and NSGEU reviewed all

classifications in the Health Care, Clerical, and Service units under an agreed job

evaluation process. The outcome has province-wide application for classifications in

⁸⁵Nova Scotia Government and General Employees' Union v. Nova Scotia (Final Offer Selection) [2001]

N.S.L.A.A. No. 13 (Ashley), ¶ 51 - 60

7 5

36

other employer bargaining units. This was an indirect form of what the union advocated

at the 1962 fact finding inquiry. There was no review of classifications in the Nurses

unit. Its collective agreement has a classification appeal process.

[115] In November 2003, the NSGEU and Capital Health District Authority agreed to

voluntary interest arbitration held in May and June 2004 to settle the unresolved terms

of the Health Care collective agreement. The unit covered 170 classifications and

approximately 3,000 employees, of which Licensed Practical Nurses were

approximately 15%. The main issue was the amount of a wage increase. The recent

classification review and diversity of classifications in the unit was a factor influencing

the outcome. The board majority described the employer and unit.

The CDHA is the largest, the leading, and the most advanced health care

institution in Atlantic Canada. It provides core health services for approximately

40% of the population of Nova Scotia and high level tertiary and quaternary acute

care services for people throughout Atlantic Canada. The CDHA is also the

largest academic health sciences centre in Atlantic Canada, affiliated with the

Faculty of Medicine and Health Professions at Dalhousie University. The CDHA

was created as a result of passage of legislation effective January 1, 2001,

amalgamating a number of different health care institutions and numerous

bargaining units.

The bargaining unit in this case is the largest at the CDHA covering, broadly

speaking, health care employees. There are professional groups such as

pharmacists and social workers. There are highly trained technologists operating

sophisticated diagnostic and therapeutic systems, technologist assistants,

licensed practical nurses and employees such as ward aides. There are a large

number of classifications (albeit many with only one or two incumbents) and over

3100 employees in this bargaining unit.⁸⁶

[116] The majority rejected both the union and employer proposals. “We do not accept

that a "below market" increase, requested by the employer, is appropriate nor do we

accept the optimistic and rather extraordinary claims advanced by the union.”⁸⁷

As previously stated, we have attempted to take into account the existence of the

recently concluded classification review and the historical practice of the parties

themselves, and previous arbitration boards, which have preferred to award

"across the board" increases. There are other factors as well which should

disincline an interest board of arbitration to presume to fashion a compensation

award which requires widely varying wage increases for numerous classifications

across a large bargaining unit. …

To state the point again, this Board accepts that the claim to first in Atlantic

Canada has more than arguable legitimacy given both the value of the work, as

⁸⁶Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 2 - 3

⁸⁷Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 8

37

reflected in comparable collective bargaining outcomes in the region and the

country, and the institution where that work is being performed. However, in

addition to classifications requiring large adjustments, there are also

classifications which would require no adjustments, classifications requiring small

adjustment and those in-between (and classifications where comparisons would

be, at best, problematic). On the data made available to us, it appears that the

weighted average increase for the group as a whole which would be necessary

to achieve this objective would be in excess of what is actually being awarded.

Simply put, the end result must be and has been tempered by an appreciation of

fiscal realities in Nova Scotia, Atlantic Canada and the rest of the country.⁸⁸

[117] Minority Member John Plowman described past collective bargaining that

produced provincial classification benchmarks and wage parity.

Since 1997, there has been "wage parity" in the health care sector throughout

the Province, that is, persons in the same classification receive the same rate of

pay wherever they work in the health care system, whether the person is a nurse,

a cook or a social worker. In many cases, this meant "levelling-up" to rates

established for former civil service employees at the former VG Hospital.

The concept of wage parity was developed with strong support from all the health

care unions, including the NSGEU, and at a considerable cost to the Province. It

was developed in acute care and then was extended to continuing care. From

the Province's perspective, wage parity was recognition that in a small province

like Nova Scotia, the existence of different wage rates for equivalent

classifications created significant difficulties. Wage parity was intended to end

the "catch-up" syndrome which was prevalent among different groups of

employees and their bargaining agents and also reduced the movement of

employees among health care employers based on a search for higher wages.

In the 2000/01 round of bargaining, there was further integration of pay rates. In

the bargaining at CDHA for the three non-nurse bargaining units, the parties

negotiated terms under which a review of all positions in those bargaining units

would take place. The CDHA made a specific monetary commitment in the

amount of $3.5 million or approximately 2% of the total payroll for the three

groups, to fund increases in the wage rates that would arise from the process.

Non-nurse bargaining units outside of CDHA incorporated specific provisions

tying each group into the results of the classification review process at CDHA.

Positions in those organizations were to be matched to their counterparts at

CDHA. A classification review process was subsequently initiated at CDHA and

an agreement between CDHA and the NSGEU establishing a new pay plan for

the health care, support and clerical bargaining units was reached in November

2003.

In summary, the 1997/98 round of bargaining brought in the era of "wage parity"

and this was further solidified in the 2000/01 round with implementation of parity

maintenance agreements tying wages throughout the Province to the outcome of

the classification review process at CDHA. Although a very costly exercise in the

short-term, this was expected to enhance the overall labour relations stability by

promoting consistency in the use of provincially recognized benchmarks.⁸⁹

⁸⁸Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 12 - 13

⁸⁹Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 48 - 51

38

[118] Member Plowman disagreed with the increase awarded by the majority.

The Majority Award states that "these bargaining unit employees employed by

the leading health care employer in Atlantic Canada could reasonably expect in

free collective bargaining that their compensation should be located in the

forefront of wages paid for equivalent work performed in Atlantic Canada and in

the middle of the Canadian 'pack'." I firmly disagree. CDHA may be the leading

health care institution in Atlantic Canada, but I do not believe that free collective

bargaining would result in special treatment for the health care bargaining unit at

CDHA as compared to other DHAs. It would certainly not result in all of the

approximately 170 classifications in the bargaining unit being eligible for a catch-

up based on the top wage rate in the Atlantic Provinces - whether the

classification is for skilled or relatively unskilled work, whether the labour market

for the classification is local or regional, whether there are any recruitment and

retention issues.⁹⁰

[119] He concluded the majority award destroyed wage parity across the province with

special focus on Licensed Practical Nurses and undid what had been accomplished

since 1997.

The Majority Award destroys the principle of wage parity which has been

established in the Province during the past two rounds of bargaining. At present,

employees in the same classification receive the same pay rate everywhere

within the Nova Scotia health care system, irrespective of region or entry point

into the health care system (acute care or continuing care). As noted earlier, this

was developed with the strong support of all the health care unions, including the

NSGEU.

With the CDHA health care bargaining unit now treated differently, labour

relations in the health care sector will be reversing the direction in which it has

moved since 1997.

The immediate effect of the Majority Award is that it destroys wage parity for the

LPN position, both within CDHA's own organization, as well as among other

health care employers in the Province. The LPNs at CDHA in the NSGEU

bargaining unit will now receive more than LPNs at CDHA in the NSNU

bargaining unit and more than other LPNs in the Province. This is a significant

break from the past in that LPNs within NSGEU and NSNU have received and

maintained the same rates for the past three rounds of negotiations. The two

unions, health care employers and the Government had recognized and

addressed the need for LPNs within both unions to be paid the same. Notably, in

the process for final offer selection in the last round of bargaining, there was

agreement to treat the LPNs as a distinct group so as to ensure parity between

LPNs represented by the NSNU and those represented by NSGEU.

Wage parity for other classifications in health care bargaining units will also be

destroyed unless the increases in the CDHA wage rates cascade throughout the

other health care bargaining units - and both scenarios have very serious

consequences.

⁹⁰Capital Health District Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 77

39

The parties have put major efforts into the classification review which covered not

just the health care bargaining unit, but the support and clerical bargaining units.

Superimposing the concept of "top in Atlantic Canada" on the present pay plan

for the health care unit will have a significant impact on the relativities in the

present pay plan.

The submissions of both parties clearly show that they attach great importance to

maintaining the integrity of the classification relativities which have been

established through the classification review. Nevertheless, the Majority Award,

based on the approach of "top in Atlantic" undermines that classification review

and flies in the face of those submissions.⁹¹

[120] In 2005, Arbitrator Innis Christie established wage rates for Queen Elizabeth II

Registered Nurses for the collective agreement from November 1, 2003 to October 31,

2006. The supply of Registered Nurses was a matter of concern to the employer and

NSGEU. The focus of the wage increase was to ensure QE II Registered Nurses

received the same wage increases as the NSNU Registered Nurses employed by the

employer.⁹²

[121] Wages for Registered Nurses and the term of the collective agreement were the

issues submitted to arbitration in 2011 by the NSGEU and Capital Health District

Authority. The genesis of the dispute was a provincial government request for wage

restraint. The union and employer were apart 3% per year in wages and one year in the

term of the agreement.

Specifically, the provincial government called for restraint in the form of a

maximum 1% across-the-board wage increase in each of the two years. This is

the only significant health care sector unit whose wage adjustment in this round

has not already been determined. All the other bargaining units in the health

care sector have settled for 1% and 1% wage increases for the period November

1, 2009 to October 31, 2011 under contracts with either two or three-year terms

ending on or about October 31, 2011. As the Employer emphasizes, the 1% and

1% annual increases were recommended by the various bargaining agents

(CUPE, NSNU, CAW, IUOE, SEIU, CUPW, UFCW and this bargaining agent in

respect of its other health care units) and accepted by the affected bargaining

unit employees. Of particular importance are the settlements involving this

Employer and the NSNU and this Employer and this Union (NSGEU) involving its

health care unit. The NSNU collective agreement covering 541 RNs and 189

LPNs provided for 1% and 1% wage increases over the November 1, 2009 to

October 31, 2011 term. The NSGEU health care unit collective agreement

covering 3,896 employees, including a range of professional classifications, also

⁹¹Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 93 - 98

⁹²Capital District Health Authority, unreported, September 27, 2005 (Christie)

40

provided for 1% and 1% wage increases over the same November 1, 2009 to

October 31, 2011 term.⁹³

[122] Arbitrator Kevin Burkett described the composition of the employees covered by

the dispute and the terms of the previously negotiated collective agreement.

There are just over 2,500 nurses in the Union bargaining unit and about 90% of

them work at the QEII. Bargaining unit nurses are assigned to all the specialized

areas of the QEII with about 85% of the bargaining unit in the "staff nurse"

classification. Eighty-three percent of the nurses in this bargaining unit are

regular employees working on a full or part-time basis. The remainder are casual

employees.⁹⁴

**********

The 2006-2009 collective agreement, the predecessor to the instant collective

agreement, was freely negotiated. The parties agreed to increases totalling just

under 11% over three years with a 2.1% increase effective April 1, 2009,

breaking a public sector pattern for the term. The parties also agreed to a new

step on the grid for nurses with 25 years' service worth 3.5%. In addition, the

parties agreed on a 2% bonus for nurses who remained at work even though

eligible to retire on an unreduced pension. This settlement maintained these

nurses as the highest paid in Atlantic Canada and restored them to middle of the

Canadian pack (fifth).⁹⁵

[123] A majority awarded 1% for each of the first two years, 1.6% for a third year term

and:

A grid adjustment effective November 1, 2011 as follows: The bottom step of

each pay grid is to be removed and a new step inserted at the top of each pay

grid with a differential of 3.5% between the top two steps of each pay grid

exclusive of the 25 year rate. The 25 year rate is to be maintained at 3.5%

above the top step of each pay grid. For purposes of clarity the differential

between step 5 and step 6 of the adjusted grid for the staff nurse is to be 3.5%

and the differential between step 6 and the 25 year rate is to be maintained at

3.5%.

Each nurse is to be placed at the same step on the adjusted grid as she/he was

on the prior grid.⁹⁶

[124] Dissenting Member Brian Johnston would not have awarded a three year term or

the 25 year service increase awarded by the majority.

[125] In 2012, the final settlement for the Health Care unit at Capital Health District

Authority was resolved by interest arbitration following strike notice and a mediated

impasse resolution agreement. Under the expired collective agreement, approximately

⁹³Capital District Health Authority [2011] N.S.L.L.A. No. 9 (Burkett), ¶ 9

⁹⁴Capital District Health Authority [2011] N.S.L.L.A. No. 9 (Burkett), ¶ 3

⁹⁵Capital District Health Authority [2011] N.S.L.L.A. No. 9 (Burkett), ¶ 10

⁹⁶Capital District Health Authority [2011] N.S.L.L.A. No. 9 (Burkett), ¶ 18

41

30% of the employees would have continued to provide essential service throughout a

strike. Other collective agreements were settled during the time in mediation and

arbitration period.

Eight sister District Health Authorities across the Province, which had been

engaged in bargaining within the same time-frame as the parties here, reached a

common settlement but with a different bargaining agent - the Canadian Union of

Public Employees, which represents employees in health care bargaining units

within those Districts engaged for the most part in identical or nearly identical job

classifications as those here. By the terms of the common settlement, Renewal

Collective Agreements covering 2,455 employees in seven healthcare bargaining

units were penned, each for a three-year term commencing 01 November 2011

and terminating 31 October 2014, with wage increases totaling 7.5% :

2% effective 01 November 2011;

2.5% effective 01 November 2012; and

3.0% effective 01 November 2013.

Identical wage terms covering 2,025 employees in five clerical and six service

units in those District Health Authorities were reached with CUPE in that

settlement.

That cluster of settlements was reached in early May, prior to the date set by the

parties for the filing of their written submissions, and so addressed by each of

them in those submissions as well as orally at the 02-03 June hearing. In late

May, the Canadian Auto Workers reached a common settlement on the same

terms with three more Health Authorities: three renewal Collective Agreements,

each of a three-year term covering inter alia, bargaining units of health care

employees engaged in identical or nearly identical job classifications as those

here, with wage increases identical to those in the CUPE settlement totaling

7.5%.⁹⁷

The annual increases awarded for a three year term were the same as the negotiated

agreements – 2%, 2.5% and 3%.

[126] Against this background, NSGEU summarizes its leadership place and role in

health care collective bargaining as follows:

NSGEU is the largest Union in Atlantic Canada. More than 12,500 of our 30,000

members are affected by Bill 1. Two of our leading locals Local 97 and Local 42,

work at the largest quaternary and tertiary care hospital east of Montreal.

NSGEU Nurses at Capital Health (Local 97) and Health Care Workers (Local 42)

have almost exclusively established wage patterns in Nova Scotia for the last

fifteen years ….

These two groups set wage patterns in this province because bargaining and

arbitration history has established that they have a national wage standing,

because they are historically willing to take job action to support that standing

and because they have the consistent backing of the NSGEU to pursue

⁹⁷Capital District Health Authority, unreported, June 15, 2012 (Kutter), ¶ 9 - 10

4

42

appropriate wage settlements. The wage patterns set by Locals 97 and 42 are

followed by employees in the remaining healthcare unions and in the broader

public sector.⁹⁸

[127] The Registered Nurses collective agreement between NSGEU and Capital

District Health Authority expired October 31, 2012. Collective bargaining continued into

2014. In March 2014, the Registered Nurses were on the verge of strike and

anticipating legislation. The Essential Health and Community Services Act⁹⁹was

introduced March 31^stand passed April 4^thending a one-day April 3^rdstrike. A

collective agreement was concluded in October after enactment of the Health

Authorities Act.

3.8

Rivalry and Recent Instances of Union Collaboration

[128] Trade unions, like self-regulating health care professionals, can be fiercely

autonomous and jealously protect their jurisdiction. They compete in achieving

increased and new benefits for their members. They are proud of what they have

achieved and quick to praise their choice in matter like job evaluation or service

portability in crediting seniority as better than another union’s choice.

[129] In acute health care, this is most prominent in the NSGEU and NSNU rivaling

praise for the benefits achieved, approaches chosen and provisions incorporated in

their collective agreements on behalf of Registered and Licensed Practical Nurses.

Merging bargaining units will eventually result in one approach on the many issues

covered by collective agreements prevailing.

[130] For example, the NSNU has pride in the provision allowing nurses to use

seniority as a member union of the Canadian Federation of Nurses Union outside Nova

Scotia to establish seniority in Nova Scotia under its collective agreement.

In the event that an Employer hires a Nurse to a regular position to commence

work within six (6) months of the Nurse leaving employment from a position in

any other bargaining unit represented by a member of the Canadian Federation

of Nurses Unions (CFNU), the Nurse shall be credited with equivalent Seniority

as at the time of termination from the other bargaining unit.¹⁰⁰

⁹⁸Summary, Tab 11 – NSGEU Documents, October 17, 2014

⁹⁹S.N.S. 2014, c. 2

¹⁰⁰Article 21.01 “Canadian Nurse Portability”

43

The NSGEU has not chosen to have any of its nurse members’ seniority ranking

lowered by a newly hired nurse from another province and, in this process, resists

having its current members’ seniority ranking in a province-wide unit changed by the

NSNU approach when integrating seniority among nurses.

[131] It is axiomatic that collaborative health care is better care. Health care

professional collaboration is legislated in Nova Scotia.¹⁰¹Many trade union leaders and

activists know from experience that collaboration with employers advances common

workplace and social interests. They also know union collaboration is necessary to

address common issues.

[132] Standard bargaining units provided a basis for multi-employer negotiations

resulting in common terms and conditions of employment across multiple bargaining

units. At times, perhaps for perceived tactical or strategic advantage, unions and

employers disagreed over the extent to which collaboration crossed employer and

bargaining unit boundaries.¹⁰²

[133] CUPE and Unifor have collaborated in workplace and community surveys to

identify collective bargaining priorities. Locals of each of these national unions prepare,

prioritize and ratify a set of common proposals to be advanced in a round of collective

bargaining with district health authority employers at a common provincial table.

[134] With CUPE taking the lead, the health care unions identified the employers were

not paying the full service costs to the employees’ pension plan established in 1960. In

effect, the employers were taking a contribution holiday. In 2006, the Labour Relations

Board dismissed an employers’ complaint the issue could not be the subject of

collective bargaining.¹⁰³Subsequently, there was a union public awareness campaign

and strike threat before a multi-union and multi-employer settlement described as

follows:

By the end of a final negotiation session, attended by representatives of all of the

unions, the Government and the Employers agreed to end their now-

acknowledged contribution holiday, returned $10,611,000 to the NSAHO [Nova

¹⁰¹Regulated Health Professions Network Act, S.N.S. 2012, c. 48

¹⁰²One instance was the subject of 2009 CUPE complaints. South Shore District Health Authority, LRB

#6280, May 19, 2009 and Annapolis Valley District Health Authority, May 19, 2009, LRB #6287

¹⁰³South Shore District Health Authority, September 6, 2006, LRB #6067

44

Scotia Association of Health Organizations] Pension Plan for fiscal 2006 to 2007,

and permanently increase Employer contributions by 1.4% and freeze any future

use of Plan Surplus. The unions estimated that this change would "return" the

amount of contribution holiday to the plan that had been taken within

approximately 10 years. Secondarily, the Memorandum of Agreement that was

signed committed the NSAHO to engage in a good faith negotiation to discuss a

comprehensive change to the governance structure of the plan on the basis of

equal Union and Employer representation. In the result, this discussion evolved

into a lengthy but ultimately successful process that restructured the plan's

governing board into a genuinely 50-50 joint decision making structure. This

process was concluded on June 4, 2012, some six years after the beginning of

the process.¹⁰⁴

[135] In another collaborative union endeavour after the scope of practice for Licensed

Practical Nurses was changed in 2006, unions representing Licensed Practical Nurses

in both Nurses and Health Care bargaining units formed a joint committee with the

employers to examine compensation for Licensed Practical Nurses. This issue was

enduring from previous rounds of collective bargaining and interest arbitration. The

2008 – 2009 Joint Committee recommended an adjustment in addition to any other

economic based increases and made recommendations “to advance the recognition of

the knowledge, skills and duties” of Licensed Practical Nurses.¹⁰⁵

[136] Last year, the unions collaborated in anticipation of district health authority

consolidation.

4.

UNIONS AND EMPLOYERS DISAGREE HOW TO RESTRUCTURE

[137] In early 2014, with the Minister on his Listening and Learning Tour across the

province, it appeared inevitable that district health authority employers would be

consolidated by the spring of 2015 under legislation to be introduced in the fall of 2014.

Between January and May, the Minister and members of the Department of

Health and Wellness visited every health authority in the province and the IWK

Health Centre. This involved more than a dozen stops at hospitals and health

centres across Nova Scotia.

The Minister also discussed health issues with members of First Nation, African

Nova Scotian and Acadian communities.¹⁰⁶

¹⁰⁴Kevin Skerrett Affidavit, December 5, 2014, ¶ 22

¹⁰⁵Maria Langille Affidavit, December 1, 2014, ¶ 22 - 28

¹⁰⁶District Health Authority Consolidation What We Heard Report - Listening & Learning Tour Frequently

Asked Questions, June 3, 2014, p. 2

45

[138] CUPE local unions 835, 1933, 2431, 2525 and 4150 began discussions to

consider what district health authority consolidation and a province-wide bargaining unit

meant for them. Their exclusive bargaining agency and collective agreements are:

 Local 835

Health Care and Support in South West Nova Health Authority

 Local 1933 Health Care and Support in South Shore District Health Authority

 Local 2431 Clerical collective agreement in Cape Breton Health Authority

 Local 2525 4 Clerical, 4 Health Care and 3 Service in Colchester East Hants,

Cumberland, Pictou County and Guysborough Antigonish Strait

Health Authorities.

 Local 4150 Health Care and Support Collective Agreement in Annapolis Valley

District Health Authority

They began discussing consolidation into a new provincial acute care local based on a

regional structure that would mirror what emerged as employer management zones.¹⁰⁷

[139] In February 2014, the NSNU commissioned a survey telephone poll conducted

between February 10^thand 28^thamong its Registered and Licensed Practical Nurse

members to determine their opinions on the importance of being represented by a u

exclusively representing nurses. The results of this poll among its members were

favourable for the NSNU. In contrast, the NSGEU prides itself in its diversity of

membership in diverse workplaces and believes it derives strength to represent nurses

and all its members from this diversity.

[140] On February 14, 2014, the Nova Scotia Federation of Labour on behalf of unions

representing acute care employees wrote the Premier and Minister proposing union

successorship representation of employees of the consolidated health authority be

determined in accordance with the Trade Union Act, as in past restructuring, with an

interim freeze on certification amending applications.

We are writing to propose a straight forward approach to the labour relations

aspects of your plan to create a single Provincial Health Authority to replace the

present District Health Authorities. This approach will permit a smooth transition

to a single health authority while minimizing disruption of the employment rights

of front line employees who provide acute health care services to Nova Scotians.

¹⁰⁷Wayne Thomas Affidavit, December 10, 2014

46

From previous discussions with the Minister of Health and Wellness we

understand that your government will bring forward legislation in the fall which

would create a Provincial Health Authority. Reorganizations in public services

since 1994 have all included protections for employees to preserve their

employment rights as they transition to a new organization. One of the clauses

which is usually included in legislation reorganizing public services is a provision

that the new entity is a successor employer to the present employers under

Section 31 of the Trade Union Act. We expect that any legislation creating a

Provincial Health Authority will include these standard provisions.

In order to avoid the disruption of employee rights in their workplaces because of

creation of the Provincial Health Authority, we propose that the merger legislation

also include a provision that neither the Authority nor any of the Unions

representing its employees may apply to the Labour Board to modify the existing

bargaining units without the consent of all parties.

This approach would facilitate the reorganization of the District Health

Authorities, but avoids the reorganization of bargaining units and the disruption of

the collective agreement rights of the employees delivering front line services.

The Unions representing bargaining units would continue to represent their

members in bargaining with the Provincial Health Authority.

Although there are presently 49 bargaining units of employees of the District

Health Authorities, the Authorities and the Unions involved do not bargain 49

separate agreements.

The Canadian Union of Public Employees, the Nova Scotia Nurses Union and

Unifor each bargain at a single provincial table for their members employed by

the District Health Authorities other than Capital Health. NSGEU bargains at a

single table for employees of the District Health Authorities engaged in public

health, drug addiction and continuing care outside the Capital District. There are

four bargaining units represented by the NSGEU at Capital Health. As a result,

there are actually less than ten agreements covering employees of the nine

District Health Authorities.

This approach to bargaining has consistently generated collective agreements for

the employees who provide services in our hospitals. While it preserves the right

to strike, strikes have been extremely rare and very brief. This approach to

labour relations would provide the Provincial Health Authority with the ability to

predict and plan for labour relations and collective bargaining based on the

experience since the District Health Authorities were created. In contrast, a

reorganization of labour relations has the likelihood of not only creating turmoil

during the transition but a potential for eventual province wide strikes. You have

championed the right to strike for health care employees in the past. We are

asking you to maintain a system which preserves it.

As the heads of all the public sector health care unions in Nova Scotia, NSGEU,

CUPE, NSNU and Unifor represent more than 20,000 health care members. Our

members - nurses, health care workers, clerical and support staff - want to focus

their efforts on delivering front line health care. They do not want to enter into a

protracted battle over benefits and the provisions of collective agreements that

they have negotiated over several decades.

We believe that our approach to the organization of labour relations in the new

Provincial Health Authority will provide security to employees in the acute care

sector and make the merger of the District Health Authorities smooth and

47

successful at the front line of delivering care to Nova Scotians and we anxiously

await your response to this positive approach.

As reflected in our approach, we take this matter very seriously and in fact are

scheduled to meet again on the 24^thof February on this matter. A response to

this approach for that meeting would be very positive and greatly appreciated.

[141] The unions representing acute health care employees had been through

restructuring and devolution before. If employee choices in past votes are a predictor of

the present, two likelihoods emerge. First, a majority of employees will select the

NSGEU to represent them in a vote between it and other unions. Second, a majority of

Licensed Practical Nurses will vote to be in a Health Care, not a Nurses, unit.

[142] However, in March 2014, there were reports the Minister preferred to have all

nurses in one unit represented by one union. On April 29^th, the Minister spoke at the

NSNU annual general meeting. It was reported he mused the next day that he liked a

model of nurses being represented by a nurse leader.¹⁰⁸This would eliminate rivalry

between the NSNU and NSGEU in representing, speaking and advocating on behalf of

Registered Nurses.

[143] There is no report the Minister spoke about the unit placement of Licensed

Practical Nurses or was contemplating including them in a Nurses unit. It was reported

he preferred not having representation votes and fall legislation could determine the

unions representing units of employees. He would meet with the unions.

4.1

Broad Union Perspective on Restructuring

[144] Previous restructuring had generated disputes before the Labour Relations

Board, representation votes among employees, competition between unions for

employee support and loss of bargaining rights to other unions.

[145] Was the process this time to be similar or a dedicated process specifically

designed for the restructuring as had been adopted in some other provinces?

[146] Was it to be mediation similar to the process in Prince Edward Island that

avoided votes among all employees except Licensed Practical Nurses represented by

¹⁰⁸Brian Flinn, Leo Glavine Wants Single Nurses’ Union, Holly Fraughton Affidavit, November 28, 2014,

Exhibit “A”, Tab 1

48

several unions? Was it to be an appointed commissioner recommending or making

regulations as in British Columbia and Saskatchewan?

[147] The choice has process, policy and legal implications. In 1994, British Columbia

chose to appoint a Health Sector Labour Relations Commissioner under amendments

to its Health Authorities Act¹⁰⁹who made recommendations to the Lieutenant Governor

in Council, which could make regulations. This approach was chosen when labour

relations restructuring became bogged in multiple successorship proceedings before the

Labour Relations Board. It side-stepped lengthy, complex and costly Board hearings

and adjudication subject to judicial review.

[148] The Health Sector Labour Relations Commissioner appointed March 8, 1995

delivered recommendations in the form of regulations June 30, 1995 reducing the

number of bargaining units from 888 to 10 with only a 5% change in union membership

of the 96,700 employees represented by 19 unions and reducing the incidents of

collective bargaining and the number of collective agreements from 200 to 5.¹¹⁰

[149] In Saskatchewan, the Health Labour Relations Reorganization Commissioner

under The Health Labour Relations Reorganization Act¹¹¹made regulations submitted

to the Minister subject to approval, but not amendment, by the Lieutenant Governor in

Council. The Commissioner appointed July 15, 1996 issued an interim reorganization

proposal November 28, 1996 for consultation and delivered regulations January 15,

1997.¹¹²The regulations reduced the number of bargaining units from 538 to 45. The

incidence of collective bargaining was reduced from 25 to 9 or 10 depending on the

outcome of a representation vote in one unit. The bargaining agents for 43 units were

determined. The Labour Relations Board supervised representation votes in the other

two units.

¹⁰⁹S.B.C. 1993, c. 47

¹¹⁰James E. Dorsey, Health Sector Labour Relations Commissioner, Reshaping B.C. Health Care

Appropriate Bargaining Units, June 30, 1995 (see also “B.C.'s Health Sector Collective Bargaining

Restructuring: An Unfolding Story", address to Alberta Labour Relations Board Conference, Issues in the

New Health Care Environment, Edmonton, Alberta, September 24, 1996 published in (1997), 5 Canadian

Labour & Employment Law Journal 85)

111

S.S. 1996, c. H-0.03

¹¹²James E. Dorsey, Health Labour Relations Reorganization Commission, Reorganization of

Saskatchewan`s Health Labour Relations, January 15, 1997 (see also Health Labour Relations

Reorganization (Commissioner) Regulations, RRS c.H-0.03, Reg 1)

49

[150] Alberta gave regulation making authority to the Lieutenant Governor in Council

through amendments to its Labour Relations Code that bypassed many processes. The

Alberta Labour Relations Board describes the four bargaining unit configuration and

composition for the provincial health authority as follows:

The basis of these unit descriptions is job function. The Board's assignment of an

employee to a bargaining unit depends upon the person’s actual function, not

upon occupational title. …

Boundaries of the Unit

The Regulation requires all units to be province-wide. …

Direct Nursing Care or Nursing Instruction

“All employees when employed in direct nursing care or nursing instruction.”

This unit includes all those employees for whom nursing training is a prerequisite.

It applies to those employed in nursing care or instruction in nursing care. The

unit could contain graduate and registered nurses, psychiatric nurses and

nursing instructors when instructing.

Auxiliary Nursing Care

“All employees when employed in auxiliary nursing care.”

This unit includes all those employees providing nursing care but not to the level

of registered or graduate nurses. Persons employed as licensed practical

nurses, registered nursing assistants, nursing assistants, and nursing aides are

within this unit. It also includes people working in such categories as nursing

orderlies.

Paramedical Professional or Technical Services

“All employees when employed in a paramedical professional or technical

capacity.”

This unit includes all employees providing professional paramedical services.

Persons working as dietitians, pharmacists, social workers, physiotherapists,

occupational therapists, laboratory scientists, and psychologists fall within this

unit. This unit also includes all employees directly related to or engaged in

providing qualified technical services. Persons working as combined laboratory

and x-ray technologists, dietary technologists, cardiology technicians, ophthalmic

technicians, and pharmacy technicians are within this unit. Administrative

employees such as health information management professionals and medical

photographers are also included. This unit also includes technologist categories.

Some of these are medical radiation technologists, medical laboratory

technologists, respiratory therapists and e.g. technologists.

General Support Services

“All employees when employed in general support services.”

This unit includes all employees whose prime function is general support

activities. Persons employed in activities such as clerical, office administration,

50

trades, food services, housekeeping, laundry and custodial services are in this

unit.¹¹³

[151] In Quebec, there are four legislated units with occupations defined.¹¹⁴

1. Nursing and cardio-respiratory care personnel;

2. Paratechnical, auxiliary services and trades;

3. Office, administrative technician and professionals; and

4. Health and social services technicians and professionals

[152] In Nova Scotia, the unions representing employees of the nine district health

authorities decided to get ahead of the government process choice of Labour Board,

regulation, commissioner or any other, and explore options to support transition of

representation and collective bargaining rights and collective agreements to a single

consolidated provincial health authority employer.

[153] Apprehension, scepticism and, perhaps, attributing less than altruistic

motivations are common union reactions to organizational change that portends

diminished bargaining power. An accompanying loss of membership and

representational rights strikes at the core of a union as a mutual support organization for

employees with common interests and history.

[154] Trade unions are not simply service providers for a fee. They are communities of

employees who focus on employment, health and safety, equality and other workplace

issues and broader community and social interests. As CUPE submits, union

membership helps protect against the “vulnerability of isolation” in ways beyond the

economic sphere.¹¹⁵Employees active in unions contribute time and invest a part of

their personal identity in their union activism.

[155] Unions provide members opportunities for education and self-improvement.

Licensed Practical Nurse Dianne Frittenburg, CUPE Local 1933 President, describes

her experience.

My seniority date is 1985: 28 years.

¹¹³Alberta Labour Relations Board, Information Bulletin #10, Bargaining Units for Hospitals and Nursing

Homes – Effective: December 1, 2011 (see also Regional Health Authority Collective Bargaining

Regulation, Alta Reg. 80/2003 as amended)

¹¹⁴An Act respecting Bargaining Units in the Social Affairs Sector, CQLR, c. U-0.1

¹¹⁵CUPE Submission, November 27, 2014, ¶ 6

51

I was hired as CUPE Local 1933 with regionalization in 1998 and went to Local

4150, then back to Local 1933 in 2003.

I am President of Local 1933. I have been President for six years. Prior to that I

was Vice President for eight years. I have been Secretary Treasurer for CUPE

NS for 9 years, on CUPE National Health Care Committee last 2 years, on CUPE

National Women's Committee for 2 years, Human Rights Committee CUPE NS.

I've acted as Executive Liaison CUPE NS to the Human Rights Committee, the

Women's Committee and the Global Justice Committee. Previously I was

Secretary-Treasurer for Local 4150. …

I sit in NSCHC network, which is a Board that advocates for Public Health Care

and a non-profit organization, a Multi board with community members from

various sectors and non-union. …

*********

I became more involved in CUPE because of the opportunities, stewarding,

committee work, sitting on various working groups, and organizing social events.

It's our autonomous structure that I love: representing the members, giving back

to the members.

Being a CUPE activist has given me the ability for personal growth: I attended

Labour College in Port Elgin, Ontario.

I was selected to be part of a delegation to travel to Honduras to learn about

women working in the Maquill and the health and safety issues they face. Few

other unions offer this kind of opportunity. From what I've seen, CUPE works on

women's equality and human rights more than other unions. We have an

Equality Rep and an OHS Rep at the Atlantic Regional Office in Dartmouth.

I've sat on the CUPE national resolutions committee and the national

constitutional amendments committee, where I've gained a detailed

understanding of parliamentary procedure.

The greatest thing is the huge opportunity for educational growth that CUPE has

for every member, locally, provincially, nationally, and even internationally.

CUPE provides a wide variety of educational activities for all its members.

Because of our local autonomy and our union dues staying mostly with our Local,

we've held community events like BBQs with entertainment at the shipyard's

landing in Bridgewater -- a celebration of May Day. We give bursaries to

members' children that are going to universities (6) in Liverpool, Bridgewater, and

Lunenburg. We participate in Labour Day events and December 6th Memorial

Services with the South Shore District Labour Council. We make donations to

Harbor House Women's Shelter each year. This isn't just about money, it's about

being a real part of our communities.

Regarding the Health Accord renewal campaigns, as a CUPE member I sit on

the Nova Scotia Citizens' Healthcare Network. Their main objective is to raise

awareness about the need for a renewed health accord. I believe that having

LPNs in CUPE actually helps public health care.

I was one of the coordinators for this health accord campaign. Our local

embraced it as concerned healthcare workers from the summer through the fall

of 2014, holding community events, such as the Exhibition Parade in July for the

South Shore, and in New Germany's parade Celebrating Canada Day. We

handed out free hand sanitizers and info about the health accord. We raised

public awareness about healthcare.

52

This year we held a big town hall meeting in Bridgewater where close to 300

people attended. CUPE President Paul Moist and Maude Barlow spoke about

the 902 million dollars lost out of healthcare in NS starting in 2017.

This year our local held lunch and learns about health care, across the south

shore to hospital and LTC [long term care] workers and interested community

groups. And we campaigned door to door.¹¹⁶

[156] Residential Care Worker John Deveau, CUPE Local 385 President, describes his

union’s community work:

My local 835 has been extremely busy forever. We had a very proud history: at

our last CUPE National Convention in Quebec, our local won a national award for

literacy. We financially assisted members wishing to advance their education. In

2014 we still have members who can't read or write. Our CUPE local paid the

cost for their GED exams and books.

Local 835 donates annually to two different adult learning centres, one in

Yarmouth and one in Digby. The more literate our members are, the more

empowered they are. The more empowered they are the more likely they are to

participate in CUPE educationals, conferences and conventions, and in our

communities. Our local's leadership takes pride in being part of that.

Part of our history is Labour Day events with other unions. When four years ago

I became a CUPE NS Vice President, we began celebrating Labour Day with a

family picnic, bouncy castles, and BBQs in the centre of downtown Yarmouth.

Our local donates annually to a Transition Home, Juniper House a place where

women can go to get away from their abusing spouses in Yarmouth.

The CUPE educationals, through Union Development, and the strong CUPE

Equality Branch, helps CUPE members develop their sense of community. It

also helps that CUPE has area offices, as in Yarmouth, and specialized staff in

the regions, for instance, an Education Rep and an Equality Rep located in the

Atlantic Regional Office in Dartmouth.

In the Acute Care sector in Nova Scotia, with the coordination with Wayne

Thomas and Communications Rep John McCracken, we organized the HAIS

campaign that went from Yarmouth to Sydney. CUPE provincially came up with

an idea for a hand sanitizer campaign and how to prevent Hospital Acquired

Infections. It was a public health campaign really explaining the importance of

proper hand-washing. We were educating the public about MRSA C-Dif, VRE.

One of the faces of CUPE was an environmental service worker because they

are the front-line, they are our defense. CUPE National funded this. CUPE

understood the importance of educating the public and workers about the

importance of HAIS prevention. I don't believe that other Unions match CUPE's

commitment to this kind of public education.¹¹⁷

[157] Trade unions have different constitutions and bylaws, organizational structures,

cultures and capacities. Some are more rooted in some communities, workplaces and

occupations than others. Some are more socially and politically active than others.

¹¹⁶Dianne Frittenburg Affidavit, November 28, 2014, ¶ 3 - 5; 8; 28 - 38

¹¹⁷John Deveau Affidavit, November 28, 2014, ¶ 12 - 17

53

Some are more collaborative, practical and pragmatic than others. Not unlike provincial

tables in the Canadian federation, a union’s membership size will direct its place, and

perhaps its voice and vote, at local, provincial and national labour councils and

federation of unions. And like some provinces, some unions have an influence above

their size.

[158] Employees more active in a union’s affairs are more aware of the differences

between their union and others; are proud of their union; and can have a deep antipathy

to being forced to leave their union for another. Staffing Clerk Tammy Provost, CUPE

Local 2431 President, speaks of forced movement between union representation:

I use a religious analogy to explain what the change could mean for me. All of

my life I've been a Catholic; now I'm being told you must convert - I'm being told I

have to be a Protestant. Bill 1 is taking away everything I've believed in my

entire working life, and now I have to believe something else. Not to mention the

complete upheaval. If I have to go to a union I don't want to belong to and vice

versa, I won't be able to go quietly. I believe the negative consequences of the

upheaval would be long-lasting, and are completely avoidable.¹¹⁸

[159] Another analogy, despite commonality of services, is some credit union members

would deeply resent being forced to change to a chartered bank even if it is just across

the street from the credit union location where they have been a member all their life.

The resentment might run deeper if, over the years, they had contributed and devoted

volunteer hours and effort to their credit union. Similarly, despite general commonality

of political viewpoint and common opposition to other points of view, political party

members might strongly oppose coalitions or mergers between their party and another

with a similar, but not the same, viewpoint. They might oppose and resist being forced

to join or support the other party. And they might view with suspicion and resentment

constituency boundary changes that diminish their party’s local chance of success and

increase the chances of an opponent party.

[160] Membership is its main lifeblood and asset of unions. It is the pool from which

leadership, staff and activists are drawn. Membership composition and complexion will

shape and direct the priorities and culture of the organization. Membership size will

determine organizational viability and the resources available for training, leadership

¹¹⁸Tammy Provost Affidavit, November 28, 2014, ¶ 10

54

development, research and social and political activism. This was expressed by Unifor

as follows:

Unity is the process of transforming individual aspirations into collective interests

and action. It is based on equality. It is forged in diversity. It is strengthened by

solidarity. As we overcome the divides of geography, the barriers of separate

workplaces and occupations, and the differences of race and gender, age and

background, we build a unified working class organization.

An engaged membership is critical to Unifor’s success. Engagement happens

when ideas are welcome, involvement is encouraged and when the union

actively develops the skills and understanding of its members. In our efforts to

be inclusive, we open the union to new members and a broader definition of

membership, and we ensure that our union reflects the diversity of our

membership and communities.

Unifor is more than an aggregate of individual members. The union is shaped by

our relationships, by how we treat and care for each other. Our commitment to

solidarity speaks to the significance of the language of “union sister” and “union

brother”. It is evident in the day-to-day bonds of fellowship and friendship, it is

found in the expressions of respect and mutual support, and it is witnessed in the

acts of cooperation and interdependence, and by our commitment to anti-

harassment.

Unifor is committed to good governance, fair representation and clear rules and

practices. The principle of accountability will be apparent in all our decision

making and actions. And the practice of transparency will be evident in our

procedures. Our reporting, financial and otherwise, will be timely and reliable

and our decision making will be clear and relevant.

Unifor is fully committed to equity and inclusion. Women, Racialized and

Aboriginal Workers, Lesbian, Gay, Bisexual and Transgendered Workers, Young

Workers, Workers with Disabilities and other Equity seeking groups, will be

represented in the structures of the union at all levels. In certain articles the

constitution provides specific provisions which detail how women and equity

groups participate in the leadership structures of the union. Elsewhere the

commitment is expressed as a more general one. Where the commitment is a

general one it requires those with the necessary authority and responsibility to

address the issue. When By-Laws of all bodies in the unions are submitted to

the National Executive Board for approval they will be viewed through this gender

and equity lens.¹¹⁹

[161] Unifor expressed the role of local leadership in maintaining harmonious and

stable labour relations and its view of the future effect of the approach being taken to

acute health care labour relations restructuring.

Stable and harmonious labour relations are based not only on trust between

unions and employers, but also between the union and its membership. The

development of this relationship of trust creates an environment in which

resolutions can be found without unnecessary conflict.

¹¹⁹Submissions of Unifor Locals 4600, 4603 and 4605, December 8, 2014, ¶ 4

55

The ability to lead and resolve issues in a manner satisfactory to union

membership requires that the members accept the guidance of the leadership.

This has nothing to do with majoritarian determinations of bargaining agency. It

takes time, education, the development of a culture and the time-tested

demonstration that the union’s leaders have and will continue to act in the best

interests of the membership. Without this, members will not follow the guidance

of the union’s leadership resulting in a greater number of arbitrations because

settlements cannot be had, - leading to anything but harmonious and stable

labour relations. As such, the manner in which the government has chosen to

have a bargaining agent determined will inevitably result in increased conflict,

instability and potential harm to the delivery of health care services.

Adding to the difficulties engendered by a lack of trust given the new “labour

landscape”, the local leadership in most of the districts and at each facility will not

know or be familiar with the people and culture of the union they will become a

part of. They may not want to become part of the administration of the new

union; certainly they will not hold any elected positions in their new union on April

1, 2015. The loss of those people at a crucial time will create the real difficulty in

representing members during the transition period, whatever length it turns out to

be. This is not like a single entity transfer of a single entity bargaining unit with a

single collective agreement. This is a province wide, multi-location; simultaneous

transfer of bargaining agents and collective agreements. There is no need for

precedential case law, even if there were any, to demonstrate that the

administration of the bargaining units could become unmanageable without the

machinery to represent the members, who are entitled to fair representation by

statute.¹²⁰

[162] These characteristics of unions and other factors shaped the unions’ proposal to

the Minister and Premier on February 14, 2014. The Premier replied February 21^st, in

part, as follows:

Planning for the reorganization is in the early stages at this time. You are aware

the Minister of Health and Wellness is currently embarking on a tour of all

districts including the IWK. The purpose of the tour is to engage stakeholders in

a discussion of how to improve the health system. Union leaders at the local

level have been invited to attend these sessions. As well, there is a commitment

to meet with all of you, as the provincial union leaders, as part of the tour.

Government has not made any decisions on the issues you have raised. It is

currently assessing the many complex elements of the current health system. As

we consider and reach conclusions on these and many other issues, your

proposal will be considered.”

[163] The Nova Scotia Federation of Labour responded April 9^thwith concerns.

… the Minister has been quoted in several of the media and related comments

that he intended to meet with the leadership within the next six months. Clearly

given the importance and profile of this matter; these comments or overtures do

not reflect a serious desire or intent to have open and constructive discussions

with those who represent the thousands of workers in the Health Care system.

¹²⁰Submissions of Unifor Locals 4600, 4603 and 4605, December 8, 2014, ¶ 93 - 95

56

We believe this meeting needs to be arranged sooner rather than later if we are

to have or hope to instill confidence in the process.

4.2

Health Care Unions Propose Multi-union Bargaining Association

[164] The February proposal by the Nova Scotia Federation of Labour was not

accepted. The Minister’s subsequent musing created union concern future rights would

not be determined in accordance with successorship principles or processes in the

Trade Union Act. However, on May 1, 2014, the Minister of Labour and Advanced

Education stated in the House of Assembly: "The government will respect the desires of

the health care union members in which union they want to belong.” The context was

as follows:¹²¹

NURSES UNIONS: AMALGAMATION - LEGISLATION

HON. FRANK CORBETT: Mr. Speaker, my question is for the Minister of Labour

and Advanced Education. Earlier this week the Minister of Health and Wellness

told reporters that his preference is to have one union representing all nurses in

this province. The Minister of Health and Wellness went a little further saying he

would prefer health care workers not vote on which union should represent them

- no he wouldn't want to have that democratic right. What he would prefer is that

government introduce legislation this Fall to decide which union represents each

health care worker. I will table that story.

Mr. Speaker, through you to the Minister of Labour and Advanced Education,

when does she plan to introduce such legislation dictating which union will

represent which health care worker?

HON. KELLY REGAN: Mr. Speaker, I thank the honourable member for the

question, I think. Just to be clear, I have had no conversations with the Minister

of Health and Wellness on this particular subject and I have no plans to introduce

any such legislation. Thank you.

**********

MR. CORBETT: Mr. Speaker, they're not only rudderless on the Bluenose II but

they're rudderless on the labour issues. The Minister of Health and Wellness has

some odd ideas about labour relations. Taking away the right to choose which

union represents you in the workplace is another one of these musings by the

ne'er-do-well minister. What this does is it really destabilizes the workforce within

the health care system.

I want to ask the minister once again, through you Mr. Speaker. If the minister

shares the views of the Minister of Health and Wellness and should they decide

which union should represent which health care workers at the bargaining table,

then when will these public consultations begin?

MS. REGAN: Mr. Speaker, there are no consultations planned because there is

no legislation of this kind planned either. Thank you.

¹²¹Nova Scotia House of Assembly, Hansard Debates and Proceedings, Assembly 62, Session 1, May 1,

2014, pp. 2639 - 2641

57

MR. CORBETT: Well Mr. Speaker, we have a lone ranger apparently in that

cabinet, who is making musings and he's making it up as he goes apparently.

Now look, Mr. Speaker, these are not things that this caucus is saying. We've

tabled the musings, if you will, of the minister and it's not like someone on the

backbench had said this. This is someone that's a member of the Executive

Council. That should carry a fair amount of weight, even with that government.

Mr. Speaker, the last time the Liberals amalgamated district health authorities

there were runoff elections, health care sector unions were left in flux, labour

(interruption) was broken up . . .

MR. CORBETT: … Mr. Speaker, I'm going to ask just a very simple question.

Why would the Minister of Health and Wellness say this if he wasn't

contemplating it? And why would this government then not respect the rights of

health care workers to choose which union they want to belong to?

MS. REGAN: This government will respect the desires of the health care union

members in which union they want to belong, thank you.

[165] The unions met May 29^thand agreed they should continue to represent their

current members in collective bargaining with the new employer. At the same time,

because public statements suggested the government wanted reconfigured province-

wide bargaining units they rejected the prospect of competing in representation votes

for employee support beyond their members.

[166] While the unions had worked collaboratively for common cause, there was some

residual sentiments from past representation votes. Because the district health

authority employers had pursued a provincial collective bargaining agenda since 1998,

the unions knew the struggle they had cooperating to avoid one agreeing to an

employer proposal that others would not. The unions had leapfrogged one another to

achieve economic benefits and wage gains ahead of inflation. A single collective

bargaining table for each unit diminished that tactic for the future. Recent essential

services legislation weakened a future strike threat in collective bargaining.

[167] The unions decided the goal of maintaining representation of existing members

in province-wide units required they agree on a structure for joint union bargaining.

Construction industry provisions in the Trade Union Act provide for representation and

bargaining by a council of trade unions. Could there be a council of health care unions?

[168] An alternative to councils of trade unions was health care union bargaining

associations created in British Columbia as a solution to similar circumstances. A lead

union in each association conducts collective bargaining for province-wide collective

58

agreements. The associations have proportional representation on the negotiating

committee. Ratification and strike votes are province-wide.

[169]

Whatever the approach, there were challenges and risks: accepting loss of

autonomy; overcoming cultural differences, rivalries and personality conflicts; and

foregoing opportunities to grow at another’s loss by going it alone. There were risks to

not collaborating: potential loss of members; costs to fight to keep or gain members;

splits in labour unity that would last into the future; and weakened survivors having to

deal with weakened strike threat bargaining with a strengthened employer.

[170] In June, the Minister reported during his tour: “A strong desire to avoid run-off

votes and the resulting impact on the workplace was consistently shared.”¹²²

[171] The union leadership met in June and July and agreed to a framework for a

bargaining association structure fashioned on the British Columbia approach.

[172] They knew the government had a preference to eliminate the fifth unit. They

agreed there would be four, not five, bargaining units with one association and one

collective agreement for each unit. The four units were: (1) Registered Nurses and

Nurse Practitioners; (2) Health Care; (3) Administrative Support; and (4) Service

Support. Employees in the Public Health and Addiction Services units would be

integrated into these four units. This could be a loss for the NSGEU.

[173] They recognized there would be consistency in unit composition at both the

consolidated provincial health authority and IWK Health Centre. To create classification

consistency and to avoid representation votes, they agreed:

Because the make-up of the present Nursing, Health Care, Administrative

Support and Service Support bargaining units is not consistent in all District

Health Authorities and the IWK Health Centre, there are employees in some

classifications that are included in different standard bargaining units depending

on the location; these employees should be included in the provincial bargaining

unit that corresponds to the present standard unit in which a majority of those

employees are included province-wide;

Where there are inconsistencies between the scope of the present bargaining

units, the inclusion of any particular classification in a provincial bargaining unit

should not depend on a vote of the employees or other preferences; rather,

¹²²Health Care Conversations 2014 – What We Heard, p. 12

59

inclusion should depend on the type of standard bargaining unit in which the

majority of employees in that classification in the province are included;¹²³

[174] This was consistent with labour relations board practice that newly organized or

currently represented numerical minorities of employees can be added to or reassigned

to a bargaining unit without giving those employees a choice by representation vote.

The current majority placement, not some other criteria or preference, would be the

determining factor for classifications in two or more units.

[175] This meant Licensed Practical Nurses, currently evenly distributed for

representation among the four unions, would be in the Health Care unit. There would

be no vote or “other preferences” directing them to be in another standard unit or a

separate auxiliary nursing unit as in Alberta. As identified in the table below, only 26.8%

of the Licensed Practical Nurses employed by the nine district health employers are in

the Nurses unit and represented by the NSNU.

[176] While the leadership understood the government’s preference was to have

Licensed Practical Nurses and Registered Nurses at the same bargaining table, in

subsequent discussion they learned this preference could be overcome and the

Licensed Practical Nurses could remain in the Health Care unit if other matters were

satisfactorily resolved.¹²⁴They also learned the government wanted to reduce the

diversity of classifications in the Health Care unit, which they did not address.

[177] They proposed multi-employer bargaining by the consolidated provincial health

authority and IWK Health Centre, which would reduce the incidence of collective

bargaining to four sets of provincial negotiations.

[178] The overarching Framework Agreement the unions made includes the following

principles.

1. We believe that our members employed by the District Health Authorities will

be best served by each Union continuing to represent its own members in

dealings with the Provincial Health Authority;

2. We are not interested in a contest for membership between the Unions and do

not seek to take over the members of other Unions;

¹²³Framework Agreement, August 5, 2014, ¶ 7 - 8

¹²⁴Email exchange July 15, 2015 between Raymond Larkin, Q.C. and Executive Director Public Sector

Labour Relations Roland B. King

60

3. We accept that the merger of the District Health Authorities will result in

provincial bargaining units;

4. We support a new model of collective bargaining in which the Provincial Health

Authority and the IWK Health Centre (together "the Employers") bargain with an

association of bargaining agents in each of four provincial bargaining units;

5. The features of the new model of collective bargaining include:

a. The Unions which have been certified or recognized to represent

employees of the District Health Authorities or the IWK Health Centre

will continue to be the certified bargaining agents for those

employees;

b. Collective bargaining in each of the four provincial bargaining units will

be conducted between the Employers and a Bargaining Association

formed by the Unions representing the employees included the

provincial bargaining units;

c. The Unions certified or recognized to represent employees who are

included in a provincial bargaining unit will continue to perform all of

the usual functions of a certified bargaining agent under the Trade

Union Act except collective bargaining;

d. Collective bargaining on behalf of employees in each of the four

provincial bargaining units will be conducted exclusively by the

Bargaining Association of the Unions representing employees in that

provincial bargaining unit;¹²⁵

[179] The agreement contained provisions on bargaining units, four bargaining

associations, collective bargaining, bargaining principles and administration of collective

agreements.

[180] The approach separated collective agreement negotiation from local collective

agreement administration and enforcement through grievance and arbitration. There

would be transition issues to be resolved.

¹²⁵Framework Agreement signed August 5, 2014

61

Table 3: DHA Units – Approximate Number of LPNs – November 25, 2014

Total

by

Union

572

Total

by

Group

Employer

Nurses

SSDHA SWNDHA AVDHA CEHDHA

CHA

PCHA GASHA CBDHA CDHA

91

108

96

186

NSNU

523

572

NSNU

523

NSGEU NSGEU

151

163

162

476

CUPE

471

Health Care

1,470

CUPE

471

Unifor

Public

Health /

Addiction

Services

5

13

5

2

1

26

39

91

NSGEU NSGEU

NSGEU NSGEU NSGEU

NSGEU

Total

150

176

167

93

92

109

123

505

709

2,133

NSGEU

614

NSNU

572

CUPE

476

Unifor

22.1%

471

28.8%

26.8%

22.3%

62

4.3

Employers Reject Unions’ Proposal as Fundamentally Flawed

[181] On August 5^th, the unions and Nova Scotia Federation of Labour (NSFL) met with

Patrick Lee, Pictou County Health Authority Chief Executive Officer who had been

appointed in April to lead the Transition and Design Team reporting to the Deputy

Minister; Bob Dunn, Director of Labour Relations and Compensation Analysis, Health

Association Nova Scotia; and Rolland B. King, Executive Director, Public Sector Labour

Relations, who had facilitated the meeting and continued after the meeting to facilitate

discussions.

[182] On August 22^nd, the employers responded to the unions’ proposal. At that time,

the IWK Health Centre had a board of directors and Chief Executive Officer and the

nine district health authorities had a single administrator. The response in an unsigned

and unattributed document - “Employer Comments: August 20, 2014” - said the unions’

proposal was “flawed in five fundamental ways.” The reply states, in part:

It is important at the outset to emphasize, as we did in our meeting of August 5,

that our role in these discussions is not to make a decision about the proposed

structure being put forward by the unions. Ultimately, this will be a decision for

government to make; however, government will likely seek the input of the

employers regarding the unions' proposals. Therefore, it is in the spirit of

transparency that we will provide you with the input we would also provide

government, if it is to ask for our opinion on the Framework Agreement of August

5. ….

By concentrating on creating a proposed structure in which each union would

continue to represent its current constituency, the unions may have failed to

consider potential solutions to the current health sector bargaining structure.

From the employers' perspective, the proposal is flawed in five fundamental

ways:

1. The question of the appropriate bargaining unit for LPNs. From our

perspective, the question is with which bargaining unit the LPNs have the

greatest community of interest. We see the greatest community of interest

lying with the RNs in the Nursing unit. Best practice would suggest that the

LPNs should be placed in the appropriate bargaining unit, rather than simply

placing them in the unit which currently contains the greatest proportion of

LPNs (Framework Agreement, paras. 7 and 8).

2. Bargaining unit composition generally. Although the LPNs are the most

obvious problem regarding the composition of the four health sector

bargaining units, we generally disagree with the process proposed in paras. 7

and 8 of placing classifications in bargaining units based on current majority

placement. We feel that the bargaining units should be defined and

composed of classifications based on their community of interest, not on

accidents of history (which would simply enshrine existing problems).

63

3. Enshrining current collective agreements. Paragraphs 24, 32 and 41 all

suggest that the unions' collective goal is to enshrine the current differences

between their collective agreements with the new provincial employer.

Therefore, while there would only be one collective agreement, it would

comprise substantially different terms relating to different employees based

on prior collective agreements. In other words, while there may only be one

cover, it would, for all intents and purposes, remain multiple collective

agreements. Moreover, there are fundamentally different ways of dealing

with issues in the collective agreements that would become nonsensical in

one collective agreement (e.g., security against lay-offs vs no contracting out

that would lead to lay-offs, education premiums vs. special unit premiums,

STI vs. accrued sick leave, the Long Assignment/Short Assignment, etc.).

4. Dysfunctional bargaining. Paragraphs 24 and 32 also signal that the

bargaining process itself would become dysfunctional. Each union may see

its own approach to hot button topics as correct, and the other unions'

approaches as concessionary. These provisions would require the employer

to engage, by default, in multi-party bargaining (albeit, at one table).

Although para. 31 of the Framework Agreement provides that majority rule

will prevail for the bargaining association, there is no way to trigger a vote or

require the association to take a "majority position." Moreover, in the Service

bargaining unit, the three unions currently have close to an equal three way

representation of members. The potential for deadlock is even greater in that

unit. Finally, while para. 33 requires members of the bargaining committee to

support and not undermine decisions made in bargaining, there is nothing to

hold union leadership accountable.

5. Mobility issues. Paras. 37 through 42 address some issues arising from

mobility of work in a new, single employer. The document does not address

the temporary, short-term, even day to day movement of employees between

facilities. Para. 41, however, suggests a strong impediment to mobility.

[183] On August 22^nd, NSFL Counsel wrote the Minister of Health and Wellness, in

part:

The development of the bargaining association model has provided a unique

opportunity to bring the IWK into the province-wide system of collective

bargaining.

In order to implement this new model, legislation would be required. The Trade

Union Act does not provide for multi-employer bargaining units or bargaining

associations of Unions. Further consultation and discussion is required to

discuss the legislative framework in Nova Scotia for this bargaining association

model.

[184] On placement of Licensed Practical Nurses and inconsistency in bargaining unit

composition as a result of accidents of history, he wrote: “the Unions recognize the

harmonization of bargaining units is a necessary part of the creation of a province-wide

bargaining structure. We are prepared to engage in further discussions about how this

can be achieved.”

64

[185] On continuing existing collective agreements: “There is nothing in the Framework

Agreement that suggests the Unions plan to bargain multiple collective agreements

under a single cover. The Employers will presumably have their own objectives which

they will seek to advance in collective bargaining.”

[186] On collective bargaining and province-wide employee mobility:

In item number four, the Employers argue that the bargaining process under the

bargaining association model could become dysfunctional. Dysfunctional

bargaining can happen, regardless of the structure of the bargaining parties. The

Framework Agreement contains a number of provisions that are designed to

insure that collective bargaining with the bargaining association will work.

Decisions by the negotiating committees are majority decisions. All members of

the committees are bound to those decisions. Communication strategies are

controlled by the negotiation committees.

The suggestion that there is no way in the agreement to "trigger a vote or require

the association to take a majority position" ignores the plain language of the

agreement, particularly paragraphs 25 through 33.

All bargaining agents must contend with tensions arising from competing

interests among their members. The clear, transparent structure of the

bargaining association will make it less likely that those tensions will impede the

collective bargaining process.

Maintaining current relationships between

members and their Union will promote stability.

In item number five, the Employers ignore one of the fundamental aspects of the

Framework Agreement. The Unions are committed to full, province-wide mobility

within the merged bargaining units. They are saying that union membership will

not be a barrier to that mobility, whether the movement is temporary or

permanent. This is expressed in clear, unambiguous terms in the Framework

Agreement. How mobility is achieved throughout the geographic scope of the

province-wide bargaining units will be a matter for collective bargaining, as it will

be regardless of the structure of the bargaining association.

[187] The letter concludes:

The Unions believe that their proposal is responsive to the objectives of

Government. It is a plan that has been developed by the leadership of the health

care unions and their senior staff. They are all invested in making the Health

Association model work. It is their sincere hope that the Government will work

cooperatively to develop a labour relations system for the new Health Authority.

In achieving the Framework Agreement, the unions have been able to overcome

some old rivalries and abandon positions based on past conflicts. We trust that

in time, the Employers and their representatives will be able to do the same

thing.

If you are receptive to the proposed bargaining association model, the Unions

and your officials can move forward and make necessary refinements. We look

forward to receiving your response.

65

[188] NSFL Counsel was told on August 25^ththere would be legislation in the fall to

consolidate and create the provincial health authority, but not necessarily legislation on

labour relations restructuring. Discussions should continue. The Minister wrote, in part,

on August 28^th:

I have instructed the employer representatives to schedule further meetings in

order to engage in further discussions to determine whether a model that

addresses the needs of all stakeholders can be supported. Recognizing that

there is little time remaining I have asked the committee to conclude these

continued discussions within two weeks.

Two weeks was September 11^th.

[189] The union leadership met on September 4^thand 9^th. On September 10^ththe

unions released their proposal in an update to members, which included:

We've met with government and employers. We've addressed their key

questions (see the attached Executive Summary on coloured paper for these

details). The Minister will be briefed this week and Cabinet will review the

proposal soon. We are waiting for their response. It's now up to them whether

they accept, amend, or reject our proposal.

The House of Assembly

(Legislature) opens on September 25^th, which means legislation regarding the

healthcare restructuring and labour representation could be introduced any time

after that date.

[190] There was no proposal from the employers or government. On September 11^th,

the unions were informed the government had not made a decision on their proposal.

The press reported a decision would not be made until the Premier returned from an

international trade mission.¹²⁶

5.

GOVERNMENT LEGISLATES NEW LABOUR RELATIONS STRUCTURE

[191] On September 18^th, the Minister wrote the unions, in part:

We appreciate the work and effort that you have devoted to resolving the

structural and representation issues. Your efforts have demonstrated a desire to

work cooperatively. However, we believe that it has not adequately addressed

valid and significant concerns articulated by the employer representatives, nor

has it resolved all of the issues of interest for this government. It has always

been the desire of government to have a more streamlined and efficient health

labour structure that supports the transformative changes required to improve

health services for Nova Scotians.

In your letter of August 22, 2014 you correctly pointed out that legislation will be

required to address the labour structure. It is my intention to introduce legislation

dealing with the labour structure during the fall session of the House of

¹²⁶Michael Gorman, The Chronicle Herald, September 11, 2014, Nova Scotia healthcare unions call for

province-wide contracts

66

Assembly. The efforts and genuine dialogue of the parties is acknowledged with

thanks. In recognition of these efforts, the legislation will include an option for

mediation with a neutral third party, in another effort to allow the parties to reach

a negotiated solution to the challenges of the current system in a more structured

way.

[192] Concrete characteristics of intended transformative changes rather than

organizational changes, if any have been approved by government, had not been

articulated. What was clear was that nine would become one and no longer would there

be nine “different interpretations of programs, policies and services”¹²⁷and there would

be more efficient and effective use of assets and resources.

[193] Will the nature, specifics and timing of the transformative changes be decided by

the Minister or the leadership of the new provincial health authority? Is the new

structure to be built on a concrete plan or higher level vision?

[194] What was to be mediated was not stated. Would there be a role for the Labour

Board (formerly the Labour Relations Board)? Could the government negotiators be

persuaded during mediation to agree to some form of multi-union structure? Would the

government insist on Licensed Practical Nurses being in the same bargaining unit as

Registered Nurses? What else was to be legislated, perhaps multi-employer

bargaining?

5.1

Seizing the Opportunity to Streamline the Labour Relations Structure

[195] As discussions proceeded over the summer, there was a shift in focus in

communications from the Department of Health and Wellness away from celebrating the

value of staff and their contributions towards the opportunity consolidation provided to

streamline the acute care labour relations landscape.

[196] The issues of the same classification of employees in multiple bargaining units,

multiple union representation of the same classification of employees and multiple

rounds of collective bargaining were identified September 25^thin the third issue of

Transition News:

With consolidation comes an opportunity to improve the labour relations structure

and representation for unionized employees. The opportunity is to have more

timely settlements and more efficient collective bargaining if we reduce the

number of bargaining processes and the number of collective agreements. This

¹²⁷Health Care Conversations: What We Heard, Nova Scotia, June 2014, p. 2

67

will also benefit employees through fair and consistent practices across

bargaining units.

Government and employer representatives have met with the unions

representing health care providers. There were discussions around options for a

new labour relations structure. However after a review, the government and

employers feel a union proposal for a joint union bargaining association does not

address all the concerns of government. This fall, government will introduce

legislation to deal with the labour structure. That legislation will include mediation

with a neutral third party, so employers and government can continue to work

with unions to address these challenges. More information will be shared as this

evolves.¹²⁸

Who would represent government in the mediation?

[197] The same day, the Throne Speech announced the government’s future approach

to collective bargaining: “…this government will take a more deliberate and careful

approach to labour relations in Nova Scotia. There will be no improvised and ad hoc

decisions that ultimately cost taxpayers hundreds of millions of dollars.”¹²⁹

[198] On acute care restructuring, the Throne Speech was harshly critical of the

management of the nine district health authorities and their failure to collaborate.

Consider the reality of Nova Scotia’s health delivery system: nine health

authorities with nine different business plans, nine different visions and missions,

nine strategies — all competing for equipment, staff, and doctors.

That is the past.

On April 1, 2015, Nova Scotia will launch a new structure to create the foundation

for a health system that thinks and acts as one. Nine current district health

authorities will be consolidated into one provincial authority, partnering with the

IWK Health Centre — acting and caring as one for Nova Scotians.¹³⁰

The legislative agenda included the Health Authorities Act. No second health care

labour relations statute was identified.

[199] Department of Health and Wellness comments posted on its website on

September 29^thsaid the unions’ proposed bargaining association model did not go far

enough and restated the fundamental flaws as challenges:

Health care unions proposed a “bargaining association” model, which would see

all four health care unions bargain together at the same table.

¹²⁸Transition News, Issue #3, September 25, 2014, p. 4

¹²⁹Nova Scotia House of Assembly, Hansard Debates and Proceedings, Assembly 62, Session 2,

September 25, 2014, p. 3

¹³⁰Nova Scotia House of Assembly, Hansard Debates and Proceedings, Assembly 62, Session 2,

September 25, 2014, p. 11

68

Government seriously considered this model, but it didn’t go far enough in

establishing a fair and practical labour relations structure for the health system

moving forward.

Challenges with the bargaining association model

Health care workers who do the same job could still be represented by different

unions.

Different rules around scheduling and overtime could apply to the same

employees, working side-by-side.

If unions do not agree among themselves, there is no way to guarantee they will

make a decision. This could result in longer rounds of bargaining.

Each union would keep its original members, which would be confusing as

people change jobs in the provincial system.

Unclear whether staff could fill in when they are needed at another facility on

short notice.¹³¹

[200] The next day, September 30^th, the press reported:

Health and Wellness Minister Leo Glavine has mused that a compromise could

be unions keeping their members with only one union going to the bargaining

table.

Although that possibility isn't in the bill, Glavine said Wednesday all options

would be on the table. "I believe there's some interpretation within the bill (for)

the mediator. We have said all options are available for the mediator to consider,

and we will respect the decisions of the mediator."¹³²

[201] This appeared to be a retrenchment by government opening the possibility a

bargaining association approach could be accepted in mediation. The Minister wrote

the unions on September 30^th:

I am writing in response to your letter of today regarding Bill 1. This letter will

serve to clarify my comments on the legislation that was introduced last night.

As you are aware, I met with the unions in December and again in June.

Departmental staff met with the unions throughout the summer. I have

previously outlined our reservations in regard to the Bargaining Association, and

those reservations are as relevant today as when I first expressed them.

That said, we have introduced the bill now, and it lays out a process for

mediation in another effort to find a negotiated resolution to the structural issues

that currently exist. All parties are free to bring forward proposals for discussion

and consideration in mediation. I remain hopeful that the mediator will be

successful in helping the parties to find creative solutions.

As Minister, I will not be a party at that table. It’s not my suggestions that are

important. The ones that matter are the unions’ and the employers’.

I will not be in a position to meet with you to discuss further at this time.

¹³¹Fact Sheet Health Labour Landscape in Nova Scotia, September 29, 2014,

http://novascotia.ca/dhw/PeopleCentredHealthCare/health-authorities-act.asp

¹³²Michael Gorman, The Chronicle Herald, Glavine skips debate, won't meet with unions on merger bill,

September 30, 2014

69

[202] The mediation would be between the unions and the current employers, all of

whom except IWK Health Centre would be disbanded and not have to live with

whatever was agreed.

[203] In the House of Assembly, the Premier spoke about the legislation:

The arbitrator will determine who is in the four categories, which the union

leaders agreed upon. Anything else will happen at the bargaining table. No

health care worker in this province is losing anything associated with this piece of

legislation.¹³³

[204] Within a week, the Health Authorities Act passed from First Reading September

29^thto Royal Assent October 3^rd. A proposal at the Law Amendment Committee to

amend the bill as follows was defeated:

The unions that represent the unionized employees in a bargaining unit

constitute a bargaining association that shall act as the bargaining agent for that

bargaining unit and is deemed, for the purpose of collective bargaining, to be the

certified bargaining agent for that bargaining unit.¹³⁴

[205] Within a second week, the unions and employers informed the Minister on

October 9^ththey had agreed to have me appointed Mediator-Arbitrator. The Minister

appointed me October 9^th.

[206] The streamlined collective bargaining process was explained October 20^thby the

Department of Health and Wellness:

The government’s passing of the new Health Authorities Act enables the

provincial district consolidation. In addition to elements of governance, structure

and regulations for the health authorities and clarity around the role of

Community Health Boards; the bill also allows for the creation of a revised labour

relations model for both the provincial health authority and the IWK. There is a

mechanism to identify which employee classifications should be in each

bargaining unit and a mediation/arbitration process to help guide the discussion

and decisions around union representation.

Key labour relations elements in the new legislation:

Defines four types of bargaining units for employee classifications: nursing,

health care, clerical, support services.

 Existing unions to remain.

 Legislation contains mediation/arbitration process. Mediation will attempt to

find a negotiated solution to current structural issues, including union

representation.

¹³³Nova Scotia House of Assembly, Hansard Debates and Proceedings, Assembly 62, Session 2,

September 30, 2014, p. 105

¹³⁴Unifor Book of Documents, Volume IV, Tab 67

70

 Arbitrator will make decisions on matters that are not resolved by mediation.

 Wages, benefits and pensions will not change as a result of the new Act.

These are already standard across the health care system.

 Retirement allowances will not change as a result of the new Act.

 Service is protected.

 Freeze on strikes, lockouts and collective bargaining until April 1, 2015, when

new authority is in place.

Currently there are about 21,000 unionized health care providers represented by

four health care unions (CUPE, NSGEU, NSNU, Unifor) across the nine district

health authorities and the IWK, with 50 separate bargaining units. There is

inconsistency among terms and conditions of employment for people who do the

same types of jobs. Equally challenging is the fact that four different unions may

represent people in the same classification doing the same type of work. This

means that a nurse at the Dartmouth General can’t walk across the street to

cover a shift at the Nova Scotia Hospital because their nurses are represented by

a different union.

The legislation is designed to change a structure that is fragmented and complex.

It has often taken many months and sometimes years after a contract has

expired to reach negotiated settlements. There is a need to have: more efficient

collective bargaining, more timely settlements and one shared set of

rules/contracts that apply to all unionized health care employees. Employees will

benefit through fair and consistent practices across the province, including the

ability to apply for and move more easily to jobs within the new structure.

Our acute health sector needs to be less complicated and as efficient and

responsive as possible. That includes a more practical labour relations model

with streamlined union representation. It doesn’t make sense to be signing

contracts many months or even years after the original contracts have expired.

This does not make sense and is not fair to employees or to the public who

depend on health programs and services.¹³⁵

5.2

Process Choice Implications for Labour Relations Restructuring

[207] Mediation-arbitration is common when resolving disputes over the terms of a new

or renewed collective agreement. It is becoming more common in resolving rights

disputes under a collective agreement either at the initiative of the parties or the

grievance arbitrator.

[208] Mediation involves private communication between the arbitrator and each party.

Although this is inconsistent with traditional legal standards for a fair hearing, it does not

disqualify the arbitrator from adjudicating the dispute if a settlement is not achieved. As

the Canada Labour Code states for the federal jurisdiction, mediation is “without

¹³⁵Transition News, Issue #4, October 20, 2014, pp. 4-5

71

prejudice to the power of the arbitrator or arbitration board to continue the arbitration

with respect to the issues that have not been resolved.”¹³⁶

[209] The Health Authorities Act choice of mediated negotiations followed by

arbitration, if necessary, does not include at the table the most critical decision-maker,

the government. The mediation challenges were obvious.

[210] The process concludes with adjudication orders, not recommendations.

Arbitration orders are registered in the Nova Scotia Supreme Court “enforceable in the

same manner as a judgment of that Court.”¹³⁷

[211] This process choice has a risk the Court will be guarded about embracing and

enforcing orders as its own if the Court concludes the Mediator-Arbitrator failed in some

manner to respect all parties’ right to a fair hearing. A final order might be subject to

judicial scrutiny for error in interpreting legislation, including challenges the Mediator-

Arbitrator did not interpret, apply and administer statutory authority in a manner

consistent with the Canadian Charter of Rights and Freedoms.

[212] To guard against judicial review risks for failure to provide a fair hearing to all or

interpretation errors under this statutory scheme, mediation-arbitration required more

time, process, attention and resources devoted to legal concerns and issues than other

process choices would.

[213] A commissioner process is not entirely directed or dependant on the unions and

employer or confined to their sources of information. A commission team can initiate

research, challenge commissioner’s ideas and have access to government background

policy discussion papers and their authors. Because it is not an adjudicative process,

the written report and recommendations does not have to adhere to the standard or

structure courts expect from tribunal decision-makers or demonstrate all parties’

submissions have been heard and considered. Draft reports or preliminary ideas can

be circulated for comment and consultation. Recommended solutions are not limited by

the constraints of precedents and legislative language. They are reviewed and

¹³⁶s. 60(1.2). See also Michel Picher, “The Arbitrator as Grievance Mediator: A Growing Trend” in Allen

Ponak, Jeffrey Sack and Brian Burkett eds. Labour Arbitration Yearbook Second Series 2012-2013, p. 9

¹³⁷s. 95(2)

72

evaluated in a labour relations and political context, not by the courts. Litigation over

Canadian Charter of Rights and Freedoms questions arise after not within the process.

[214] In contrast, the mediation-arbitration process under the Health Authorities Act is

designed to be responsive to the unions and employers with no direct role for the

government, which pays fees and expenses of the Mediator-Arbitrator.¹³⁸The

parameters of mediated negotiations and arbitration are constrained by negotiating

limitations the unions and employers cannot ignore or place on themselves or one

another in light of their anticipated outcomes at arbitration. The only forum for the

Mediator-Arbitrator to explore ideas for resolution of issues not resolved in mediation is

during the adversarial arbitration hearing.

[215] It is wishful to contemplate and, perhaps, fanciful to expect unions, under threat

with the most at stake, will join with employers, destined to vanish and perhaps with little

to lose, to find and agree to long term creative solutions in 45 days that will apply to an

employer not yet in existence to be managed by a senior executive not yet in place that

will oversee a service delivery system not yet designed in accordance with a business

plan not yet fashioned.¹³⁹

[216] Labour relations board restructuring of bargaining unit composition and

bargaining agent representation usually follows corporate restructuring. If it precedes

the corporate restructuring there is a great risk the employer’s restructuring plans will

change. It is a classic horses and carts situation. In some situations, boards will act on

an anticipatory restructuring.

[217] For this restructuring, the future governance is legislated. The Transition and

Design Team are planning for the future. The current employers cannot state the ways

service delivery will change or if any plans will change.

[218] Under the Trade Union Act, the Labour Board has ability to act in anticipation of a

successorship or proactively.¹⁴⁰There is no general Nova Scotia public sector

¹³⁸s. 84(4)

¹³⁹s. 86(3)(d)

¹⁴⁰Izaak Walton Killam-Grace Health Centre for Children, Women and Families, LRB # 4550, November

5, 1996

73

restructuring legislation as elsewhere.¹⁴¹The Trade Union Act and Labour Board have

been bypassed in favour of an expedited process, despite the scale of the undertaking.

[219] Providing a fair hearing to all parties and achieving a final arbitrated order in a

further 45 days after mediated negotiations presents unique challenges when the

employer parties cannot speak to the business plan not yet formulated or future models

of care and service delivery not yet adopted. The Minister allowed a requested 19 day

extension.¹⁴²

[220] In this context, an important mechanism to manage the process and timeline that

all parties invoked is the Mediator-Arbitrator’s retained jurisdiction.

In respect of each bargaining unit, the mediator-arbitrator retains jurisdiction over

the implementation of any order issued under subsection 87(1) or Section 93

until such time on or after April 1, 2015, that the health authority and the

bargaining agent enter into a new collective agreement.¹⁴³

The approach taken was to address some issues in generalities and leave unresolved,

matters to be addressed in future retained jurisdiction proceedings.

5.3

Mediated Negotiations: Seeking Creative Solutions

[221] In mediated negotiations the employers and unions bargain in “good faith and

make every reasonable effort to reach an agreement” on some or all of the matters to

be determined.¹⁴⁴

[222] Mediated negotiations were time limited to November 17^th, which is 45 days after

October 3^rd, the date of Royal assent, or an earlier date if there was an impasse. After

November 17^th, mediated negotiations can be conducted with the consent of the

employer and unions.¹⁴⁵There has been none to date.

[223] How far could the current employers and the unions agree to deviate from four,

province-wide bargaining units with a Nursing unit including Licensed Practical Nurses

harmonised at both the future provincial health authority and IWK Health Centre with

one union representing employees in each of the four units? What collective

¹⁴¹E.g., Public Sector Labour Relations Transition Act, S.O. 1997, c. 1

¹⁴²s. 94(1)(a)

¹⁴³s. 97

¹⁴⁴s. 86(2)

¹⁴⁵s.92(1)

74

agreements are to apply in bargaining units after April 1^stthat will have deemed status

for future collective bargaining under section 104 of the Health Authorities Act?

For the purpose of concluding a new collective agreement in respect of a

bargaining unit, where an order issued under subsection 87(1) or Section 93

provides that, in respect of that bargaining unit, all of the collective agreements

pertaining to the unionized employees within the bargaining unit are to remain in

force, the collective agreement to which the bargaining agent that represents the

bargaining unit is a party is deemed to be the expiring collective agreement.

[224] Some mediated negotiation tasks and outcomes were clear:

 Agreeing to have any representation votes among employees was remote.

 Bargaining unit placement of Licensed Practical Nurses was going to be

especially challenging.

 Agreeing to an alternative to single union representation of employees in a

single bargaining unit was problematic.

 Inconsistent inclusion of job classifications in multiple bargaining units

covered by multiple collective agreements across the province would have to

be addressed.

 Employee seniority had to be integrated in each province-wide bargaining

unit.

 Over 950 employees in the Public Health and Addictions Services units are to

be integrated by classification into the four units.

[225] Mediated negotiations were further complicated by constitutional challenges to

the legislation, which, by their nature, cannot be resolved through mediation.

6.

NSGEU CHARTER OF RIGHTS AND FREEDOMS CHALLENGE

[226] Some unions representing acute health care workers believe what this legislation

without representation votes to create a revised labour relations landscape is

unconstitutional. The NSGEU regards it as a thinly veiled attack to reduce its power as

an assertive and successful bargaining agent for acute care health workers.

[227] It was clear from the first organizational meeting on October 17^ththat one or

more of the unions would raise a challenge to the constitutionality of provisions of the

75

Health Authorities Act. Notice was given by the NSGEU on October 23, 2014. CUPE

made a separate application based on the constitution the next day.

[228] I requested written submissions on the NSGEU application to be filed on or

before Friday, November 15^th, the last business day before the legislated time for

mediation. I issued a decision on November 19^thdismissing this application for a

general declaration of invalidity.¹⁴⁶

[229] The application by CUPE and a second application the NSGEU made November

21^stwere heard during the arbitration hearing and in subsequent written submissions.

They are addressed below.

7.

BARGAINING UNIT BOUNDARIES AND CLASSIFICATION GROUPINGS

[230] A central determination to be made under the Health Authorities Act is the

“appropriate bargaining units for each health authority, including the appropriate

composition of each bargaining unit.” This is to be determined “from among the

unionized employees of the district health authorities.”¹⁴⁷

[231] The legislation directs “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.”¹⁴⁸

[232] Further, “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.”¹⁴⁹

[233] Apart from this specific direction, the general direction in determining the

composition of each of the four units is:

In determining the appropriate composition of the bargaining units for each health

authority, the mediator-arbitrator shall consider the community of interest among

the unionized employees in each proposed bargaining unit in respect of the

nature of the work being done, such that

¹⁴⁶Canadian Union of Public Employees, Local 835 v. South Shore District Health Authority (Acute

Health Care Restructuring Jurisdiction – Canadian Charter of Rights and Freedoms) [2014] N.S.L.A.A.

No. 10 (Dorsey)

¹⁴⁷s. 86(1)(a)

¹⁴⁸s. 89(1)(a)

¹⁴⁹s. 89(1)(b)

76

(a) 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;

(b) the health care bargaining unit is composed of all unionized employees who

(i) occupy positions that require them to be engaged primarily in a clinical

capacity to provide patient care, and

(ii) are not included in the nursing bargaining unit;

(c) the clerical bargaining unit is composed of all unionized employees who

occupy positions that require them to be engaged primarily in a non-clinical

capacity to perform functions that are predominantly clerical or

administrative; and

(d) the support bargaining unit is composed of all unionized employees who

(i) occupy positions that require them to be engaged primarily in a non-

clinical capacity to provide operational support in respect of the

provision of health services, and

(ii) are not included in the clerical bargaining unit.¹⁵⁰

[234] There are differences over the bargaining units into which some classifications

and employees currently in the fifth and sixth Public Health and Addiction Services units

are to be placed.

[235] There are differences over whether Licensed Practical Nurses should remain in

the Health Care unit and whether Registered and Licensed Practical Nurses in some

classification positions should be in the Nursing unit.

[236] There are differences over whether classifications and employees in existing

Health Care units should remain in the Health Care unit or be included in the Clerical or

Support unit.

7.1

A.

Nursing Unit Composition – Registered and Licensed Practical Nurses

“Generic” Classification Positions

[237] Some classifications in the Health Care and Public Health and Addiction Services

units have qualifications that include, but are not exclusive to, being a Registered or

Licensed Practical Nurse. These are referred to as “generic” classification positions

because they can be occupied by employees other than Registered or Licensed

Practical Nurses.

¹⁵⁰s. 90(1)

77

Submissions by NSNU, Employers and Other Unions

[238] The NSNU submits whenever a nurse is in a classification, that position is

appropriately included in the Nursing unit. It noted on December 4^th:

The NSNU has been unable to ascertain the qualifications of certain

classifications as job descriptions were missing or titles were missing. The

NSNU requested further disclosure regarding the qualifications and incumbency

from the Employer in respect of these positions and this request was not fulfilled.

Consequently, all the generic positions with nurse incumbents have not been

identified.¹⁵¹The unions are familiar with the classifications and employees in the

bargaining units they represent, but not those in other bargaining units.

[239] The NSNU approach is that inclusion in the Nursing unit should be determined by

objective factors that include “current incumbency for the classification; the historic

incumbency for the classification; the duties and responsibilities of the position; the

education and the registration as well as the position description for the

classification.”¹⁵²

[240] This is the approach the NSNU has taken in the past with Coordinator positions.

Examples are Infection Control, Geriatric Resources and Palliative Care. If the

successful applicant was a nurse, the position was in the Nurses unit because it should

be presumed the nurse will be using knowledge and skills acquired through nursing

education and experience to fulfill the duties of the position.¹⁵³If the successful

candidate was not a nurse, the position was in the Health Care unit.

In NSNU's submission, the current process regarding generic positions is one

that should be maintained and explicitly applied to the new province wide health

authority. It provided the parties with an opportunity to grieve and to make

submissions to an arbitrator in respect of any disputes regarding the allocation of

a position deemed to be in the bargaining unit.

In the submission of NSNU this best recognizes the community of interest of the

professional employees who occupy the generic positions. Depending on their

education and background their "community" lies either with the Nurses unit or

with the Health [Care] Unit.

It is also the submission of NSNU that you have the jurisdiction under the Act to

include in the nurses unit not only those who "must" be licenced as nurses but

¹⁵¹Some potential ones are listed in Grant Vaughan Affidavit, November 28, 2014, ¶ 77

¹⁵²NSNU, Final Argument, ¶ 230

¹⁵³See Pembroke Civic Hospital [1993] OLRB Rep. October 995; Victorian Order of Nurses [1984] OLRB

Rep. Feb. 395

78

also those who "are" licenced as nurses. We note that the language of s. 90 (1)

(b) is not the same mandatory language of s. 90 (1) (a), this jurisdiction comes

from discretion given to the arbitrator under the Act.¹⁵⁴

[241] By legislation, classifications with the designation “nurse” or any derivative or

abbreviation in their title must be occupied by a Registered or Licensed Practical Nurse

or a licensed Nurse Practitioner or other person qualified to describe their activity as

nursing.¹⁵⁵All the classifications currently in the Nurses unit are not exclusively those

with “nurse” or any derivative or abbreviation in their title.

[242] Any that are generic classifications have not been identified. In selecting

classification placement, the employers presumed all positions currently in the Nurses

unit, whether represented by the NSNU or NSGEU, require a nursing certificate.

Roles currently in Nursing bargaining units (both NSNU and NSGEU) were

presumed to require an RN or LPN certification, and, therefore, were not

considered for movement into other groups. Roles in other bargaining units that

were found to require an LPN designation (e.g., OR Technicians) were

recommended to move into the Nursing bargaining unit.¹⁵⁶

[243] In light of the joint job evaluation process completed in March 2010 on the

classifications within the Nurses unit,¹⁵⁷this might be an accurate presumption, but it

needs to be confirmed in this process.

[244] The NSNU identified generic positions in the Capital Health District Authority

Health Care unit occupied by 25 employees and in the Public Health and Addiction

Services units occupied by 311 employees. It identified positions in Health Care units in

the nine district health authorities’ occupied by 436 employees and in the Public Health

and Addiction Services units occupied by 69 employees for which it did not have access

to job descriptions.¹⁵⁸The result is there are 841 unionized employees of district health

authorities whose bargaining unit placement is potentially in dispute. There are

positions at IWK Health Centre occupied by 217 unionized employees for which the

NSNU did not have access to job descriptions.

¹⁵⁴NSNU, Final Argument, ¶ 239 - 241

¹⁵⁵Registered Nurses Act S.N.S. 2006, c. 21, s. 19(2)

¹⁵⁶Employer Criteria for Determining Bargaining Unit Placement, November 26, 2014, p.1

¹⁵⁷NSNU Submission November 4, 2014

¹⁵⁸NSNU Appendix A, Positions and Classifications in Dispute, as of December 4, 2014

79

[245] The employers and other unions disagree with the NSNU’s position on generic

classifications for two reasons. First, the positions are not ones that “must be occupied

by a registered or licensed practical nurse”¹⁵⁹and, therefore, do not have to be included

in the Nursing unit.

[246] Second, having the unit assignment of such a position determined by the status

of the incumbent will result in employees in the same classification, perhaps working

together, in separate units covered by separate collective agreements. The goal is to

eliminate, not perpetuate, this situation.

[247] The employers submit:

In relation to the so-called “generic positions” (positions for which more than one

health professional qualification is accepted), the employers argue that it is the

qualifications required by the job and the primary job functions, not the incumbent

or applicant, that should determine bargaining unit placement. Such positions

should be governed by the same terms and conditions regardless of the

incumbent’s qualifications. It would be less efficient, more time-consuming, and

confusing to manage, or work as, a group of professionals doing the same job

according to different collective agreements depending on the incumbent’s

qualifications.¹⁶⁰

[248] Unifor submits:

Unifor is also of the position that with respect to the “generic” classifications,

where there is a requirement that the employee be a nurse or have another

designation, such position should not automatically be included in the Nursing

Bargaining Unit. Historical filling of positions with a certain type of employee

should not be the determining factor. The determination should be based on

where the classification has normally been aligned in terms of a bargaining unit,

and the language of s. 90(1)(a) should be given meaning, with respect to the

words “must be occupied” by a Nurse or LPN.

A determination that a classification will be included in the Nursing Bargaining

Unit because it “should” be staffed by a nurse or is “usually” staffed by a nurse is

not in keeping with a focus on least disruption, historical alignment, normal labour

relations practice, or the provisions of the Act.¹⁶¹

Discussion, Analysis and Decision

[249] Like some other bargaining unit composition issues, there is incomplete

information to make a full and final determination on classification positions. This is a

¹⁵⁹s. 90(1)(a)

¹⁶⁰Final Submissions of the Employers, ¶ 89

¹⁶¹Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 75 - 76

80

function of both the available time and resources for the arbitration process and

limitations in the employers’ data systems. As the employers observe:

While the employers have attempted to sort through the classifications and

match them according to the criteria, there are undoubtedly some that have been

missed, and new ones will be created in the future. A clear definition will assist

the parties in sorting out any that come to light subsequent to your Order, and

give guidance where new classifications are created.¹⁶²

[250] Both “registered nurse” and “licensed practical nurse” are defined in the Health

Authorities Act as having the same meaning as in their regulating statutes.¹⁶³Simply

stating the Nursing bargaining unit is composed of all Registered and Licensed Practical

Nurses would achieve the result in other provinces to which the NSNU refers, namely a

nursing bargaining unit including all nurses regardless of their occupational

classifications. This was an option available to the House of Assembly. It could have

chosen less qualifying language than “occupy positions that must be occupied by a

registered nurse or a licensed practical nurse.”

[251] Non-nurses cannot occupy a nursing position. Nurses can occupy positions that

are not required to be occupied by a nurse. Those positions are not ones that “must” be

occupied by a nurse. They are not positions that the legislation directs must be

included in the Nursing bargaining unit.

[252] The NSNU submits nurses in the generic positions do have a community of

interest with employees in the Nursing bargaining unit and should be included in the

Nursing unit. The challenge with this approach is that the legislation states the Nursing

unit “is composed” of all unionized employees who occupy positions that must be

occupied by a nurse. It does not speak of the unit “including” nurses or employees in

generic positions simply because they have nurse qualifications.

[253] An overriding concern of the legislation is to correct and avoid future

classification and position duplication in more than one bargaining unit covered by more

than one collective agreement. This directed the legislative choice to describe the

Nursing unit as encompassing all unionized employees who occupy positions “that must

be occupied by a registered nurse or a licensed practical nurse” and not all unionized

¹⁶²Final Submissions of the Employers, ¶ 88

¹⁶³s. 2(1)

81

employees who are nurses, regardless of the positions they occupy. Neither does it

speak of positions frequently, normally, usually, historically or otherwise occupied by a

Registered Nurse or Licensed Practical Nurse. Mandatory occupation by a Registered

Nurse or Licensed Practical Nurse is the ordinary sense of the words read in harmony

with the scheme, object and intention of the Health Authorities Act.¹⁶⁴

[254] Therefore, I determine unionized employees who occupy “generic” positions are

not intended to be included and, on any determination of their community of interest,

should not be included, in the Nursing bargaining unit.

[255] After April 1, 2015, the two health authority employer will decide whether a future

created position “must” or “may” be occupied by a nurse. If nursing registration or

licensure, education, knowledge and experience are optional, even if desirable to have,

the position will not be in the Nursing unit.

[256] This will require collaboration between the two after April 1^stto avoid establishing

the same classification position in two bargaining units. A current example is the

classification “Crisis Intervener” in both the Nurses and Health Care units at IWK Health

Centre and in the Health Care unit at Capital District Health Authority. Another is

“Patient Navigator Cancer Care” in some Nurses units and one Health Care unit.

[257] There has been no opportunity to question or test the employer’s assumption

about classifications currently in the Nurses unit. Consequently, no union and the

employers did not propose any position currently in the Nurses unit be moved to the

Health Care or another unit at April 1^st.

[258] Based on the NSNU submission, it appears some positions currently in the

Nurses unit are generic positions and only in the Nurses unit because the incumbent is

a nurse. If this is correct, to avoid future disputes for both health authorities, these

positions will have to be identified and moved to another unit at April 1, 2015.

[259] The identification of these positions and the placement of the unionized

employees for whom the NSNU did not have position descriptions will be on the agenda

for the continuation of this arbitration.

¹⁶⁴See Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, ¶ 21

82

B.

Distribution of Registered Nurses in Province-wide Unit

[260] The Registered Nurses to be included in the province-wide Nursing unit

employed by the new provincial health authority are the Registered Nurses employed by

the nine district health authorities in ten Nurses units (two at Capital Health District

Authority); in nine Public Health and Addiction Services units (two at South Shore

District Health Authority); and, perhaps, in any non-generic positons in the nine Health

Care units which have not been identified.

[261] The employers propose eight classification positions in the Public Health and

Addictions Services be included in the Nursing unit. Licensed Practical Nurses in two

classification positions with titles containing “Licensed Practical Nurse” are addressed

later.

[262]

It appears the employees in the remaining six classification positions, of which

four have “nurse” in their title, are Registered Nurses. Further inquiry might reveal

some of the 237 nurses in these classification positions are Licensed Practical Nurses.

However, for now, assuming all 237 are Registered Nurses, the following table contains

the Registered Nurse distribution at November 25, 2014.

Table 4: RNs in Public Health and Addictions Services Units

Classification

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA Totals

1. Public Health Nurse

11

8

14

15

3

7

9

18

11

30

25

112

71

2. Nurse Rehabilitation

Counsellor

11

13

3. Staff Nurse Continuing

Care

4. Detox/Inpatient Team

Leader

26

22

48

3

1

2

5. CommunicableDisease

& Prevention Team Lead

6. Youth Health Centre

Nurse

1

2

1

Totals

19

8

14

19

24

57

77

237

[263] Again, assuming all these employees are Registered Nurses properly included in

the Nursing unit and that no Registered Nurse currently in the Nurses unit is to be

reassigned out of the Nursing unit, the following table contains the distribution, current

union membership and representation of Registered Nurses employed by the nine

83

district health authorities to be consolidated into the provincial health authority as well

as the separate group of Registered Nurses employed by IWK Health Centre.

[264] The table contains totals for each health authority, a provincial total for both

health authorities and union membership totals and percentages.

84

Table 5: RNs - District Health Authorities & IWK – November 25, 2014

Provincial

Union

Totals

Union

%

Union

Totals

Union

%

Employer

SSDHA SWNDHA AVDHA CEHDHA

CHA

208

PCHA GASHA

CBDHA

1,081

CDHA

Totals

IWK

987

Nurses Unit

NSNU

NSGEU

PH&AS Unit

NSGEU

297

295

428

252

249

300

497

2,548

3,607

2,548

3,607

2,777

8

4,594 62.26%

2,777 37.63%

56.43%

43.44%

0.13%

11

8

14

19

24

57

77

0

229

8

CUPE

8

0.11%

7,379

316

303

442

271

227

273

357

1,158

3,045

6,392

987

85

C.

Licensed Practical Nurses

[265] Including Licensed Practical Nurses in the Nursing unit at April 1, 2015 is one of

the most contentious issues. Section 90(1)(a) of the Health Authorities Act states:

In determining the appropriate composition of the bargaining units for each health

authority, the mediator-arbitrator shall consider the community of interest among

the unionized employees in each proposed bargaining unit in respect of the

nature of the work being done, such that

(a) 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;

[266] Licensed Practical Nurses are currently in two of the Nurses and Health Care

standard hospital units and the fifth non-standard unit. CUPE, Unifor and NSGEU

submit consideration of community of interest requires they remain in the Health Care

unit.

Elsewhere in Canada and Recent Developments in Nova Scotia

[267] While Alberta legislatively directed Licensed Practical Nurses to be in an auxiliary

nursing unit, in 1998 the Manitoba Labour Relations Board included them in a nursing

unit in acute care. That board also addressed “generic” units.

As in rural determination, classifications which do not specifically require that the

incumbent be a nurse, i.e. a classification which provides that a number of

disciplines, including a person holding the designation of a nurse, would be

eligible to apply for and obtain that position and would fall within the scope of the

technical/professional paramedical unit. The parties would still have the

opportunity to deal with specific situations pursuant to the Board ruling provisions

of The Labour Relations Act. An additional classification, which may be the

subject of such a ruling, would be that of an operating room technician.¹⁶⁵

[268] In a 2013 amendment in British Columbia, “nurse” now includes a licensed

practical nurse with the consequence that Licensed Practical Nurses are included in the

statutory nurse bargaining unit.¹⁶⁶

[269] Elsewhere Licensed Practical Nurses in acute care are variously included in

nursing and other bargaining units. They are not in nursing units in Saskatchewan, New

Brunswick, Prince Edward Island and Newfoundland and Labrador. It is difficult to

¹⁶⁵Manitoba Labour Relations Board, Review of Bargaining Unit Appropriateness in Manitoba’s Urban

Health Care Sector, December 22, 1998, p. 3

¹⁶⁶Health Authorities Act, RSBC 1996, c. 180, ss.19.1 and 19.4. See also Health Employers’ Association

of British Columbia [2013] B.C.L.R.B.D. No. 157

86

identify the basis for the “best practice” including Licensed Practical Nurses in a nursing

bargaining unit as characterized in the employers’ August 20^thsummary of five

fundamental flaws with the unions’ bargaining association model.

[270] In 2007, a consultant team reviewing the delivery of health care in Nova Scotia

concluded:

… despite the relentless pressures to deliver increasingly complex care, models

of care in Nova Scotia have not changed appreciably over the last two decades.

Nova Scotia, like most jurisdictions in Canada, has significant opportunities to

redesign how work is done as well as where work is done. “If we maintain

current delivery models and levels of demand, then the shortage of nurses,

physicians and other professionals being experienced in 2006 [is] unsolvable.”

Model of care redesign is intended [to] address this issue and start to solve the

problem by establishing new roles and processes that can anticipate and meet

the changing demands for care, helping to reduce the cost of delivering care

while improving the health status of the Province’s population. ¹⁶⁷

[271] Dr. Kathleen MacMillan, Registered Nurse, Professor and Director of the School

of Nursing at Dalhousie University describes a subsequent new model of care initiative:

In and around 2009, Ministry of Health in Nova Scotia introduced the "Model of

Care Initiative", where all nurses have been encouraged to optimize their roles

and practice to the full level of their individual competency, based upon their

education and competency.

Canadian Nurses' Associations literature reviews highlight that the changing

model of care was a result of nursing shortages, and increased patient acuity and

complexity, which caused many health-care systems to re-evaluate and redesign

staff mix.

See: Canadian Nurses Association, Staffing Decisions for the Delivery of

Safe Nursing Care, June 2003, Canadian Nurses Association, Evidence to

Inform Staff Mix Decision-making: A Focused Literature Review, March 2012

Since the introduction of the new model, and as cited above, the College of

Registered Nurses of Nova Scotia and the College of Licensed Practical Nurses

have worked closely together to produce significant joint Guidelines and

documents for both memberships to assist their membership in appreciating the

impact of the new model of care on their member's scope of practice.

Both Colleges held numerous joint workshops on the scope of practice and

leadership to assist nurses with their interpretation and understanding of their

scope [of] practice in the context of the new model of care. The Colleges also

produced a joint information sheet for managers.

According to both Colleges, the new model of care requires that nurses work

collaboratively with each other and in partnership with their client/patient within

the discipline of nursing.

¹⁶⁷Corpus Sanchez, Changing Nova Scotia’s Healthcare System: Creating Sustainability Through

Transformation, December 2007, p. 34

87

Within the collaborative practice model, the assignment of work is a dynamic

process. Nurses are assigned according to:

i.

ii.

the client's condition (complexity, variability and acuity)

the scope of practice

iii.

iv.

v.

the individual's scope and competence

the scope of the employment/agency policy

context of practice

Within the new model of care, the major focus of the Registered Nurse is the

completion of the comprehensive nursing assessment of their assigned client.

RNs are accountable to ensure that each client has a nursing care plan.

Registered Nurses manage and coordinate care, evaluate health outcomes,

educate, counsel and advocate for clients. Many duties, responsibilities, and the

effort of the nurses overlap.

To assist with the new model of care, the Colleges provide a framework to

identify and describe the factors to consider in the most effective utilization of

RNs and LPNs: the client, the nurse and environmental factors. Overall the care

requirements are influenced by the client's complexity of care needs,

predictability of health outcomes and the risk of negative outcomes.

The Colleges also produce a joint Guideline specifically dealing with the

"Assignment and Delegation for Registered Nurses and Licensed Practical

Nurses" (as cited above). This Guideline provides both RNs and LPNs, as

autonomous professionals, with a framework when delegating or assigning

responsibilities to Continuing Care Assistants (or as referred to by the Colleges,

unregulated care providers, "UCP", such as Personal Support Workers).

The Colleges' Guideline specifies that both the RN and LPN are recognized as

having similar responsibility as autonomous care providers who are responsible

for their own practice. It is the nurse who determines the most appropriate care

provider to be "assigned" to perform a specific intervention for a client.

What the new model of care requires in a nursing setting is careful attention to

the environment of the client and the condition of the client. Without a doubt,

there may be environments where it is not appropriate to assign an LPN due to

the on-going complexity of the clients. In such complex environments, the LPN

would not be working to their full scope of practice as they would be required to

transfer care to RNs.¹⁶⁸

[272] Currently, Registered and Licensed Practical Nurses are in Nurses unit

represented by the NSNU in four district health authorities and several facilities in the

Capital District Health Authority. Elsewhere they are in Health Care and Public Health

and Addiction Services units. While some placements could be characterized as

accidents of history, most were a deliberate choice or agreement of employers and

government or a choice of Licensed Practical Nurses through a representation vote.

¹⁶⁸Kathleen MacMillan Affidavit, December 1, 2014, ¶ 43 – 53. See also Model of Care Initiative in Nova

Scotia (MOCINS) Final Evaluation Report, October 21, 2010 (https://novascotia.ca/dhw/mocins)

88

[273] The Canadian Federation of Nurses Unions (CFNU) promotes evidence-based

staffing practices. Linda Silas, its President since 2003, deposed that 85% of

Registered Nurses are in direct care classifications and, in 2013, Licensed Practical

Nurses constitute 25% of the combined Registered and Licensed Practical Nurse

population in Canada. ¹⁶⁹

[274] It is interesting that, with the exception of the Cumberland and Pictou County

Health Authorities, there are higher proportions of Licensed Practical Nurses in the

nursing mix in district health authorities where Licensed Practical Nurses are in Health

Care units represented by CUPE and Unifor local unions, which do not represent

Registered Nurses.

Table 6: Nurse Staffing Mix in District Health Authorities

Employer

RNs

LPNs

Total LPNs as % of Mix Variation from Average

SSDHA

SWNDHA

AVDHA

CEDHA

CHA

316

303

442

271

227

273

357

1,158

497

2,548

150

176

167

93

466

479

609

364

319

382

480

1,663

683

3,071

32.19%

36.74%

27.42%

25.55%

28.84%

28.53%

25.63%

30.37%

27.23%

17.03%

24.42%

7.77%

12.33%

3.01%

1.13%

4.42%

4.12%

1.21%

5.95%

2.82%

-7.38%

92

PCHA

109

123

505

186

523

GASHA

CBDHA

CDHA

Totals/Av

6,591 2,129 8,720

[275] There is no information in this arbitration which district health authorities or

facilities have better health outcomes than others; which mix is more economical and

efficient; or the mix intended for the provincial health authority.

[276] While it is commonly accepted organizational factors can affect quality of care,

there is no empirical study of the impact of bargaining unit composition on the nurse

staffing mix or the quality of patient care in acute care. It is also commonly accepted

money can be saved by replacing Registered Nurses with Licensed Practical Nurses.

¹⁶⁹Linda Silas Affidavit, December 10, 2014

89

There is no evidence of the circumstances or extent to which decisions are made to

replace a Registered Nurse with a Licensed Practical Nurse.

Union and Employer Submissions

[277] The NSNU submits:

Even without the clear statutory direction that the nurse unit must include both

registered nurse and licensed practical nurse, consideration of the community of

interest factors supports a combined unit of registered and licensed practical

nurses. Not only has the NSNU represented both registered and licensed

practical nurses in the same bargaining units for almost 35 years, RNs and LPNs

are of the same discipline, study from the same body of knowledge, and have

scopes of practices which overlap and work together in intra-discipline

collaborative teams. In the NSNU's submissions, a reliance on community of

interest factors leads to a conclusion that the LPNs and RNs have a strong

community of interest and fully constitute an appropriate bargaining unit.¹⁷⁰

The NSNU draws on the language of the Trade Union Act to submit a Nursing unit of

Registered and Licensed Practical Nurses is a “craft” or quasi-craft unit which it is

uniquely qualified to represent.¹⁷¹

[278] The employers submit all Licensed Practical Nurses should be in the same unit.

They agree with the legislated choice of the Nursing unit.

Section 89(1)(b) & 90(1)(a) of the HAA restrict your jurisdiction in relation to the

definition and makeup of the nursing bargaining unit, requiring inclusion of all

unionized employees who occupy positions that must be occupied by a

registered nurse or licensed practical nurse.

Aside from being mandated by the HAA, a bargaining unit of RNs and LPNs fits

within a community of interest analysis. As illustrated by documents on record,

RNs and LPNs have complimentary and largely overlapping scopes of practice.

They are often assigned to work in teams and scheduled as such. Often the

staffing mix of RNs and LPNs on some units fluctuates based on factors such as

census, acuity, and skills.

As the materials show, LPNs are already in the Nursing bargaining unit in some

DHAs, and in the Health Care bargaining unit in others. The HAA requires that

positions which require an LPN or RN be placed in the same bargaining unit.

Regardless, the terms and conditions of LPNs should be the same throughout

the province. If this were a typical merger of employers with a merging of

bargaining units, it is certain the LPNs would be placed in one bargaining unit. If

they will be in the same bargaining unit, they will have to be taken out of the

¹⁷⁰NSNU Final Argument, ¶ 49 iv

¹⁷¹Trade Union Act, R.S.N.S. 1989, c. 475, ss. 2(1)(x) and 25. See also Ontario Nurses' Association v.

Pembroke Civic Hospital, 1993 7911 (ON LRB), ¶ 55 – 56; Hospital for Sick Children, 1985

899 (ON LRB), ¶ 17

90

Nursing unit, or taken out of the Health Care unit. The HAA resolves the

question of which one.

Aside from the legislative direction, the Employers state that because of the

strong community of interest between LPNs and RNs it would be more

appropriate to put the LPNs in the Nursing unit than pull them out of it. Although

the number of LPNs in Health Care makes this a contentious issue, it is

submitted that that is the only factor that does.

The employers seek a definition of the Nursing bargaining unit that reflects the

wording in the HAA. While the employers have attempted to sort through the

classifications and match them according to the criteria, there are undoubtedly

some that have been missed, and new ones will be created in the future. A clear

definition will assist the parties in sorting out any that come to light subsequent to

your Order, and give guidance where new classifications are created.¹⁷²

[279] Unifor has represented Licensed Practical Nurses in Nova Scotia and Ontario.

In Ontario, Unifor represents RPNs (LPNs), as well as other employees in health

care-related bargaining units, including those in service/support, clerical and

para-medical bargaining units. [Vol. II, Tab 5] These units include over 8,000

employees in approximately 35 Ontario hospitals. [Vol. II, Tab 3] Part of the

collective bargaining process with these hospitals includes a process by which

the hospitals and other health care facility providers, including those in personal,

long-term and after care facilities, collectively engage in bargaining with Unifor.

[Vol. II, Tab 6] The process provides one central table, where eight unrelated

employers and multiple bargaining units negotiate issues common to all of the

collective agreements.¹⁷³

[280] Unifor submits the role of Licensed Practical Nurses is primarily clinical. It is “of

or relating to the observation and treatment of actual patients rather than theoretical or

laboratory studies.”¹⁷⁴It submits the legislated assignment of Licensed Practical Nurses

to the Nursing unit is an infringement of its members’ rights and will be detrimental to

the delivery of health care services.

With respect to the alignment of LPNs with the Nursing Bargaining Unit, post-

April 1, 2015, Unifor takes the position that such a step is detrimental not only to

the LPN members of Unifor, but to the delivery of health care services by a

cohesive and dedicated workplace team who are bound together by their shared

trade union values. In terms of the usual factors considered in bargaining unit

delineation, a strong community of interest exists between the LPNs and the

current Health Care Group classifications they work with, have bargained

alongside of, and have with whom they have struggled for recognition and

respect as workers.

The LPNs represented by Unifor have a long history with our union and its

predecessor, CAW-Canada. Their “community of interest” is in part historical, in

part operational, being that the members of the current CBDHA [Cape Breton

¹⁷²Final Submission of the Employers, ¶ 84 - 88

173

Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 31

¹⁷⁴Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 58

91

District Health Authority] Health Care Group aid each other in the delivery of

health care, but also as a result of being regionalized in Cape Breton.

The government’s objective of reducing the number of bargaining units and

collective agreements can be met without infringing upon the associational rights

of these members. The union proposed bargaining association, regarding which

the government has never provided an adequate explanation for dismissing, is a

far less disruptive and intrusive means of accomplishing its publicly stated

goals.¹⁷⁵

[281] The NSGEU views the removal of Licensed Practical Nurses, a strong and vocal

group among its membership, from bargaining units it represents as an effort to lessen

its effectiveness. It submits Licensed Practical Nurses efforts for a wage increase

through job evaluation under its collective agreement will be thwarted.

The community of interest of the LPNs lies with the health care unit. The LPNs

should be able to choose if they wish to be part of the nursing health care unit or

the health care bargaining unit. Further, there should be a vote to determine

which union will represent the nursing bargaining unit as should be the case with

the other three bargaining units. It is submitted democratic and Charter

principles demand there be no presumptions. Further to force the LPNs into a

nurse only bargaining unit is not only contrary to good labour relations policy but

also will have a negative effect on delivery of health care.

If the LPNs are taken into a nursing unit and lose the benefit of coverage by the

NSGEU collective agreement they will lose significant protection in relation to the

job evaluation process. The Arbitrator has heard considerable evidence

concerning the expanded scope of practice of the LPN. The NSGEU has a third-

party dispute resolution process with the Joint Job Evaluation process built into

its collective bargaining agreement (Unifor and CUPE have "me too" clauses

concerning this issue as well). The NSNU does not have a third-party dispute

resolution job evaluation process. The NSNU appeal is made to HANS. The

employer has already indicated it does not agree to a change of pay. The

independent appeal will be lost if the LPN does not stay in the NSGEU

bargaining unit.¹⁷⁶

[282] This is consistent with NSGEU’s view of the “true purpose” of the Health

Authorities Act to lessen its role and achieve wage restraint.

The NSGEU has taken a strong leadership role in representation of health care

workers in the province. It is submitted the purpose of the Act is to lessen the

membership and effectiveness of the NSGEU in protecting workers' rights in

acute care in the province. At present the union represents approximately one

half of acute care workers in Nova Scotia. The provisions of the Act restricting a

union to representing only one of the four bargaining units is intended to restrict

the representation of the NSGEU as it is likely if workers were allowed to choose

their collective bargaining representative the NSGEU would be the choice of

three and perhaps all four of the to-be-formed collective bargaining units.

¹⁷⁵Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 79 - 81

¹⁷⁶NSGEU Final Submission, ¶ 33 – 34

92

Further, the proposed interpretation would see both LPNs and RNs removed

from representation by the NSGEU against their wishes. The NSGEU represents

a large number of RNs and LPNs. These members tend to be active, vocal,

valuable and strong union members. This is an effort to lessen the effectiveness

of the union.

The purpose of the legislation is also to put NSGEU at a disadvantage compared

to the other unions representing acute care workers and removing its collective

bargaining rights and its members' rights to be represented by the NSGEU.

Further, it is submitted an oblique purpose of the Act is to achieve wage restraint

in the public sector, by reducing the bargaining power of the NSGEU.¹⁷⁷

[283] The NSGEU advocates a vote among Licensed Practical Nurses to choose the

union in which they wish to be included.

There should be a vote amongst the LPNs to determine if they wish to be part of

the nursing bargaining unit. Further, there should then be a vote amongst those

employees in the nursing unit to determine which union should represent them.

**********

There should be no presumptions in either case. Charter protected freedom of

association is implicated in determining bargaining units. In this case, the

existing bargaining unit structures are also the product of employee collective

action and choice. In 1996 and 1997, Licensed Practical Nurses voted to be

included in the Health Care bargaining unit, and some Licensed Practical Nurses

have voted to be included in the Nursing bargaining unit. …

Because of this unique history of collective action being directly involved in the

bargaining unit composition of LPNs, NSGEU says that to place all LPNs in the

Nursing bargaining unit without further consideration of employees' choice is

comparable to nullifying collective agreements. In redefining the bargaining units

in this way, the government renders meaningless past exercises of collective

action.

Furthermore, because of the indefinite freeze on revisiting the

representation question under the Trade Union Act, future exercises of freedom

of association of LPNs is also infringed. NSGEU therefore submits that respect

for freedom of association requires LPNs vote on what bargaining unit they will

belong in for collective bargaining processes.¹⁷⁸

[284] The NSNU submits having Registered and Licensed Practical Nurses in the

same bargaining unit will result in more collaboration, less conflict and fewer disputes

over ownership of work.

The Province’s new model of care does not align with the bargaining unit

structure in those four DHA's where the nursing work of the LPNs is within the

health care units and the nursing work of RNs is in the Nurse bargaining units.

Because of the overlapping role description between RNs and LPNs, it is in those

DHA's where the nurses are not together in one bargaining unit that jurisdictional

questions as to which unit "owns" the work are more likely to arise. This in turn

can lead to labour relations conflict.

¹⁷⁷NSGEU Final Submission, ¶ 10 – 12

¹⁷⁸NSGEU Final Submission, ¶ 36; 88 – 89

93

The NSNU has filed grievances in three of the District Health Authorities where

NSNU does not represent the LPNs, alleging that a LPN may be performing the

work of the NSNU bargaining unit. These grievances arose where it was

perceived that the Hospital was assigning the nurses' bargaining unit work out of

the nurses' bargaining unit to the health care unit.

This labour relations conflictual environment does not exist in those bargaining

units were the NSNU represents both RNs and LPNs in the nurse bargaining

unit. Here when there are issues in respect of the appropriate assignment of

work, and based upon the scope of practice of either the LPN and/or the RN's in

the nurse bargaining unit, the NSNU discusses the issues with the Employer at

the joint labour management meeting. The matters are usually resolved after a

fulsome discussion of the nurses' scope of practice.179

[285] The motto “nurses led by nurses” does not resonate with CUPE. It submits the

real world workplace motto is “nurses led by Registered nurses,” which does not

resonate with Licensed Practical Nurses. CUPE submits, as a minority in a Nursing

bargaining unit, Licensed Practical Nurse issues would not receive the attention and

priority they deserve. Registered Nurses earn a higher salary and have a vested

interest in protecting their work from being eroded by assignment to Licensed Practical

Nurses. This happened in 2014 when nurses represented by the NSGEU struck for a

nurse-to-patient ratio that did not include Licensed Practical Nurses.

[286] In contrast, CUPE submits Licensed Practical Nurses, as the classification with

the most employees in the Health Care unit, make a significant contribution and have a

significant impact on collective bargaining and union priorities.

[287] CUPE submits because of the combination of an enlarged scope of practice for

Licensed Practical Nurses and stagnating government funding for health care creating

pressure for administrators to become more efficient, the number of Licensed Practical

Nurses has grown faster than the number of Registered Nurses. The resulting change

in nurse staffing mix creates workplace tensions with Registered Nurses as

administrators seek to have Licensed Practical Nurses work the full scope of their

practice.

[288] In Manitoba, where a nurses’ union has represented Licensed Practical Nurses

for decades, there is the lowest utilization of Licensed Practical Nurses. The 2013

Licensed Practical and Registered Nurse ratio is the lowest in the country at 15.51%,

¹⁷⁹NSNU Final Argument, ¶ 188 - 191

94

lower that it was in 2010. In the same period it rose in Nova Scotia from 23.26% to

30.99%, the third highest after Quebec and Prince Edward Island. CUPE submits this is

the underlying reason nurses’ unions are moving to include Licensed Practical Nurses,

where they will be a minority in internal union democratic processes. Some CUPE

Licensed Practical Nurse leaders resent the prospect of being a minority in a union

dominated by a majority that views itself as “real nurses.”¹⁸⁰

[289] CUPE submits including Licensed Practical Nurses in a Nursing unit will hinder

government’s “ability to plan an effective nursing workforce” and the ability of Licensed

Practical Nurses “to find an effective advocate for their desire to work to their full scope

of practice.”¹⁸¹

[290] CUPE submits nursing collaboration is a laudable goal, but advocacy is needed

to produce change. Doug Allan, a CUPE senior national officer with health research

experience, deposes:

Health employers constantly seek to restructure the health care team in the

context of financial constraints, worker shortages and a highly complex and

rapidly evolving sector.

They've steadily changed the roles of nurses, care aides, paraprofessionals,

support workers and other team members, in part to deal with changing health

system and patient care needs.

The continuum of care model stands in contrast to the hierarchical and rigid

primary nursing model favoured by most Registered Nurses. Moving away from

a fluid teamwork model would seriously constrain health care planners and

providers and seriously harm patients and residents.

I believe that if LPNs are moved into the same bargaining unit as Registered

Nurses, their profession will shrink, leaving health employers and their

government funders and regulators with much less room to innovate in terms of

teamwork, skill mix and human resources more generally.¹⁸²

[291] CUPE submits there will be structural inequities between Registered and

Licensed Practical Nurses. Registered Nurses can displace Licensed Practical Nurses,

who cannot replace Registered Nurses. In the event of layoffs, Licensed Practical

Nurses in a bargaining unit with only one other classification will lose the broader

displacement and recall options they have in Health Care units. Similarly, their

¹⁸⁰Dianne Frittenburg Affidavit, November 28, 2014

¹⁸¹Doug Allan Affidavit, December 8, 2014, Exhibit D. See also Cheryl Burbidge Affidavit, November 28,

2014

¹⁸²Irene Jansen Affidavit, December 8, 2014, ¶ 14 - 16

95

promotion opportunities in Health Care units will disappear. For some local CUPE

leaders opportunities for regional or national roles and positions within CUPE will be

lost.

[292] Despite all the talk, plans and dreams, CUPE submits nothing has really changed

on the front line to warrant moving Licensed Practical Nurses from the Health Care to

the Nursing unit. Licensed Practical Nurses, who suffer more work-related injuries in

Nova Scotia than Registered Nurses and who require workplace accommodation due to

disability, will have fewer options in the Nursing unit than in the Health Care unit. There

will be more barriers to employer accommodation if the accommodation has to be in

another bargaining unit.

[293] CUPE submits Licensed Practical Nurses, aware of a broader picture than the

one portrayed by policy advocates, understand their community of interest is in a Health

Care unit. This is where they have in the past and recently overwhelmingly chosen to

be, rather than be with a nurses union promoted as a professional body.¹⁸³They

understand that mobility rates are lower and retention rates are higher for Licensed

Practical Nurses than Registered Nurses. Consequently, Licensed Practical Nurses are

less attracted by the promise of provincial or national mobility.

Discussion, Analysis and Decision

[294] This arbitration cannot address whether turf protection or collaboration will prevail

in nursing services and whether inclusion of Licensed Practical Nurses in the Nursing

unit will provide them less voice and influence and fewer professional, social,

democratic, promotional, accommodation, job security and other opportunities and

benefits. These are issues for campaigns and future research.

[295] Perhaps, after expiration on the current freeze on certification under the Trade

Union Act first proposed by the unions through the Nova Scotia Federation of Labour,

the Labour Board will have occasion to revisit its past decisions that Licensed Practical

Nurses are appropriate for inclusion in either the Health Care or Nursing unit. At this

time, I accept that Licensed Practical Nurses can have a community of interest with

¹⁸³See Miner’s Memorial Manor 2010 23555 (NSLRB)

96

employees in both the Nursing and Health Care units and are appropriately included in

either.

[296] In this arbitration, CUPE, Unifor and NSGEU confront two insurmountable

obstacles to their submissions to maintain the status quo. First, the Labour Board has

determined the community of interest of Licensed Practical Nurses can be with

Registered Nurses. Secondly, the House of Assembly has pre-empted this decision

and directed the composition of the Nursing unit leaving no discretion to the Mediator-

Arbitrator.

[297] Consequently, I have determined all unionized Licensed Practical Nurses who

occupy positions that must be occupied by a Licensed Practical Nurse are to be

included in the Nursing unit at the provincial health authority and IWK Health Centre at

April 1, 2015.

[298] Currently, there are 572 Licensed Practical Nurses in the Nurses unit with 3,607

Registered Nurses. For them, unless they occupy a generic position, there will be no

bargaining unit change and no violation of any of their associational or other rights.

[299] Under the Health Authorities Act, there is no provision for a determination of the

separate or combined wishes of the Licensed Practical Nurses and Registered Nurses

in Public Health and Addiction Services. The movement of the Registered and

Licensed Practical Nurses from these existing non-standard bargaining units to the

Nursing unit is by legislative direction. And no one submits that the abolishment of the

fifth bargaining unit and reassignment of all the employees to one of the four units

infringes their associational or other rights.

[300] In some circumstances, employees are included in a bargaining unit with other

classifications of employees without canvassing their wishes or over their objections.

This might be the approach a labour relations board would take at IWK Health Centre

where there is a small number of Licensed Practical Nurses (87) and the Licensed

Practical Nurse proportion of the nursing mix is the lowest of the ten employers (87

LPNs/1,074 RNs = 8.1%).

97

[301] When a large number of employees are added to an existing bargaining unit,

labour relations boards under general collective bargaining legislation inquire to

determine the wishes of the employees to be included in the unit and represented by

the union that will become their certified exclusive bargaining agent. At times, the

inquiry will include holding a supervised representation vote among the employees. As

addressed later, this is not an option.

[302] There are no Licensed Practical Nurses in the Clerical or Service Support units.

No generic classification positions occupied by Licensed Practical Nurses were

identified. There was mention of the Infection Control Practitioner, Infection Control

Technician and Infection Prevention and Control Co-ordinator, but the information is not

complete on whether any Licensed Practical Nurses (or Registered Nurses) occupy any

of these classification positions.

[303] Across eight district health authorities, the first group of unionized Licensed

Practical Nurses to be moved to the Nursing unit are those occupying positions in two

classifications in the nine Public Health and Addiction Services units. The second group

is unionized Licensed Practical Nurses occupying two positions in two classifications in

the Health Care units.

[304] The following table contains the distribution and classification positions of the

1,583 unionized Licensed Practical Nurses of the nine district health authorities at

November 25, 2014 who are to be moved from existing Public Health and Addiction

Services and Health Care units to the provincial health authority Nursing unit on April 1,

2015.

98

Table 7: Distribution of LPNs for Inclusion in Nursing Unit

Unit and

Classification

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA CDHA Totals

PH&SA

LPN

5

13

5

2

1

39

65

26

LPN Continuing

Care Referral

Assistant

26

Health Care

LPN

OR Technician

Totals

0

151

163

162

471

2

512

523 1,470

19

21

156

176

167

2

-

1

27

542 1,583

7.2

Health Care Unit Composition

[305] Licensed Practical Nurse is the classification with positions in three bargaining

units - Public Health and Addictions Services, Health Care and Nurses – represented by

the most unions and covered by the most collective agreements.

[306] In the standard hospital units, there are many classifications in the same unit in

different geographic locations across the province employed by different district health

authority employers represented by different unions and covered by different collective

agreements. A single province-wide unit for the consolidated provincial health authority

will bring all of the classification positions into one unit eventually covered by one

collective agreement with one employer.

A.

Twenty Unopposed PH&AS Classifications to Health Care

[307] Some classification positions are in the Public Health and Addictions Services

units and one of the standard hospital units. Examples are Secretary 2 (Clerical unit),

Community Outreach Worker (Health Care unit) and Cook (Service Support unit).

Some classifications are unique to the Public Health and Addictions Services unit.

Examples are “Coordinator Prevention & Health Promotion” and “Counsellor.”

[308] In the dissolution of the Public Health and Addictions Services units the

classification positions in these units will be included in a standard unit as was done

with Registered and Licensed Practical Nurses.

99

[309] The employers propose and the unions do not oppose assigning to the Health

Care unit twenty Public Health and Addictions Services classifications with positions

occupied by 448 unionized employees.

Table 8: 20 Classifications (448 employees) from PH&AS to Health Care

Classification

SSDHA

SWNDHA AVDHA CEHHA CHA PCHA

GASHA CBDHA Totals

1

Care Coordinator

Continuing Care

25

18

43

2

3

25

6

22

9

40

16

112

51

Clinical Therapist

B/Problem

6

5

4

5

Gambling

4

5

6

7

Specialist

Community

Health Worker

Community

11

9

11

24

46

3

4

3

6

7

1

4

1

2

Home Visitor

Community

Outreach Worker

Continuing Care

Coordinator

Team Lead

Continuing Care

Referral Assistant

Coordinator

Community

3

4

2

7

1

19

8

9

1

6

4

10

10 Health Project

1

17

1

34

6

Coordinator

11 Continuing Care

Coordinator

17

1

12 Placement

2

1

Coordinator

13 Youth Wellness

Coordinator

3

14 Youth Wellness

1

43

14

18

2

15 Counsellor

10

2

10

2

9

1

5

1

2

6

1

2

3

2

16 Dental Hygienist

17 Nutritionist

2

4

2

3

2

18 Placement Officer

Recreation

19 Therapist

1

2

3

Team

20 Coordinator

1

Totals

65

53

68

51

44

35

43

89

448

100

B.

Classifications and Associated Classifications in Two Standard Units

[310] Unlike the Nursing unit, the composition of the Health Care unit is not specifically

prescribed. It is one of the four “types”¹⁸⁴of units described as:

In determining the appropriate composition of the bargaining units for each health

authority, the mediator-arbitrator shall consider the community of interest among

the unionized employees in each proposed bargaining unit in respect of the

nature of the work being done, such that …

(b) the health care bargaining unit is composed of all unionized employees who

(i) occupy positions that require them to be engaged primarily in a clinical

capacity to provide patient care, and

(ii) are not included in the nursing bargaining unit;¹⁸⁵

[311] Past Labour Board decisions and employer and union agreements are one factor

in assessing the community of interest a group of employees in the same or similar

classification positions have with groups of employees in other classification positions.

As with Licensed Practical Nurses, there are groups of employees who will have a

community of interest with employees in more than one unit and their inclusion in or

exclusion from either will not affect the appropriateness of the composition of either unit.

[312] The employer identified classifications, other than Registered and Licensed

Practical Nurses, in two or more of the standard hospital units. It did so with the

following methodology and limitation:

In many cases, job titles are recorded in SAP using differing spellings,

abbreviations, and/or numbers across DHAs. For instance, a Medical Laboratory

Technologist may appear as a Lab Tech, Lab Technologist, or Medical Lab Tech

1. For this reason, a common title was assigned to each job to the extent

possible based on the job title from SAP and pay grade. It was not always

possible to identify whether jobs with similar titles referred to the same role,

therefore, it is possible that jobs may be duplicated or omitted from this list. It is

likely, however, that these duplications or omissions are minimal.¹⁸⁶

[313] SAP is the information technology system the Nova Scotia government uses for

financial management and business functions like payroll, recording and tracking

leaves, etc. The district health authorities have used SAP since 2009. Variation in the

SAP program across district health authorities is an example of the failure to attain a

¹⁸⁴s. 2(1)(zj)

¹⁸⁵s. 90(1)(b)

¹⁸⁶HANS, List of Classifications by DHA and Union with Proposed Redistribution, November 25, 2015,

“Notes”

101

standardized information technology approach referred to by the Transition and Design

Team.¹⁸⁷

[314] During the process leading to arbitration, CUPE identified the positions Custodial

Care, Patient Sitter and Maintenance Planner / Safety which are not in the employers’

classification lists. These and any others identified will be addressed in continuation

proceedings of this arbitration.

Medical Transcriptionist C (Clerical)

[315] One of ten identified positions in this classification is in a Health Care unit. The

others are in Clerical units. All other 91 positions in the Medical Transcriptionist and

Transcriptionist classifications are in Clerical units. CUPE identified there is a Medical

Transcriptionist classification in the Clerical unit at Guysborough Antigonish Strait

Health Authority. The employer does not list one. CUPE also identified several

classifications in this and other Clerical units that the employers did not list.

[316] The unionized employees in these classification positions will be included in the

Clerical unit for each health authority at April 1, 2015.

Porters (Support)

[317] The district health authorities have 237 employees in Porter positions. Thirty one

are in Health Care units. The reminder is in Service units. Among other things, these

employees are responsible for the safe transport of patients between areas within

hospitals.

[318] Locals of CUPE represent Porters in both Health Care and Service units in

different district health authorities. CUPE agrees with the employer that all Porter

positions are appropriately included in the Support unit at April 1, 2015.

[319]

The unionized employees in Porter and Senior Porter classification positions will

be included in the Support unit for the provincial health authority at April 1, 2015. The

IWK Health Centre does not employ porters.

¹⁸⁷People Centered Health Care Transition Planning for DHA Consolidation, June 25, 2014

102

Dietetic Technician (Health Care)

[320] Seven of the nine positions in four district health authorities in this classification

are in Health Care units. Two are in Service units. The employers and CUPE local

unions representing these employees agreed the positions should be in the Health Care

unit.

[321] The unionized employees in these classification positions will be included in the

Health Care unit for each health authority at April 1, 2015.

Ward Aide and Orderly (Health Care)

[322] The Colchester East Hants District Health Authority lists 14 Ward Aide

classification positions in its Health Care unit and two in its Service unit. There is no

explanation why the same classification is in two bargaining units with the same

employer.

[323] Two other district health authorities have 36 Ward Aide positions in their Health

Care units. Of these, the Cape Breton District Health Authority employs 29. It also

employs two orderlies in its Health Care unit, for which no position description was

provided. Orderly is one of the classifications of employees the Labour Relations Board

specifically identified in 1973 for inclusion in the Health Care unit. CUPE identified its

local union represents Ward Aides employed by the Pictou County Health Authority,

which does not list any.

[324] The employers propose Ward Aide and Orderly positions are to be included in

the provincial health authority Support unit. CUPE disagrees.

[325] The Cape Breton District Health Authority position description describes the

position purpose and responsibilities.

PURPOSE OF POSITION

A ward aide assists nursing staff in their care of patients and family. They work

cooperatively and effectively with all members of the nursing team maintaining

good communication. Reporting to the Unit Manager or delegate, the Unit Aide

completes their work assignment under the direction of the nursing staff.

RESPONSIBILITIES

 Assists as directed by nursing staff with patient transfer and hydration.

 Assists with distribution of supplies and replenishing work areas.

 Does errands for patients.

103

 Tidies patient bedside area

 Delivers flowers, newspapers to patient rooms.

 Retrieves trays from dietary lift.

 Set up and assists with feeding patients.

 Make un-occupied beds.

 Any other duties as may be assigned.

[326] As part of the nursing team, Ward Aides are “engaged primarily in a clinical

capacity to provide patient care, and are not included in the nursing bargaining unit.”

Unionized employees in Ward Aide classification positions are appropriately included in

the Health Care unit of the provincial health authority.

[327] Assuming Orderlies, for which no position description was provided, similarly

assist nursing or medical staff in patient care, unionized employees in Orderly positions

are appropriately included in the Health Care unit of the provincial health authority.

[328] There is no dispute over where unionized employees in positions in the Renal

Dialysis Aide classification, described in the job position description as Renal Dialysis

Ward Aide, are to remain in the Health Care unit.

[329] The unionized employees in Ward Aide and Orderly classification positions will

be included in the Health Care unit for the provincial health authority at April 1, 2015.

Patient Attendants (reserved for continuation)

[330] Two district health authorities employ Patient Attendants. The Capital District

Health Authority employs 101 Patient Attendants in its Health Care unit. The Colchester

East Hans District Health Authority employs 5 in its Service unit. The IWK Health

Centre does not employ Patient Attendants.

[331] The employer proposes these classification positions be included in the Support

unit at April 1, 2015.

[332] The classification position description at the Capital District Health Authority

states Patient Attendants are responsible, among other things, for transporting patients

to and from operating and holding rooms.

104

[333] The NSGEU submits the employees’ “functions are directly related to the

assessment and treatment of patients and they provide service unique to health care

and therefore should be included in the Provincial Health Care bargaining unit.”¹⁸⁸

[334] There has been no explanation by either the NSGEU or Capital District Health

Authority of the critical difference between the function of Porter and Patient Attendant

or the basis on which the Capital District Health Authority has Porters in one unit and

Patient Attendants in another. Perhaps it is simply a legacy of the evolution of the

district or perhaps there is a work organization and patient care basis for the distinction.

[335] Whether all Patient Attendants are more appropriately included in the Health

Care or Support unit at April 1, 2015 is an issue that requires further attention.

Consequently, I reserve jurisdiction on this issue to be addressed in the continuation of

this arbitration.

Unit Aide and Lead Hand (reserved for continuation)

[336] The Capital District Health Authority employs 232 employees in positions in the

Unit Aide classification. IWK Health Centre employs 118 and four lead hands in a

classification with the same name in the Service unit.

[337] The Capital District Health Authority position description identifies 15% of the mix

of responsibilities is to: “Assist with patient care (weigh patients, set patient up with

basins, assist with patient baths, shaves, feeds, positioning, lifts and transfers, records

Intake and output). Answer patient call bells. Make beds. Performs tasks only under

the direction and supervision of the RN/LPN.” The main job summary is:

The Unit Aide has an important role within the health care team. Reporting

directly to the Health Services Manager, the Unit Aide is responsible for ordering,

stocking and maintaining all supplies and equipment to meet the needs of

patients in their designated work area. An understanding of the basic principles

of infection control is essential and key to providing a safe environment for

patients and staff alike. This role also provides indirect and direct support for

patient care under the direction and supervision of the RN/LPN.

[338] The employers summarize their role as follows:

… unit aides may assist with patient care activities such as bathing, but these

roles are primarily responsible for ordering, stocking, and maintaining supplies

¹⁸⁸Grant Vaughan, Affidavit , November 28, 2014, ¶ 86

105

and equipment. Only a small portion of the role relates to patient care activities,

and is not engaged primarily in a clinical capacity to provide patient care.¹⁸⁹

[339] The employers propose and the NSGEU opposes inclusion of the employees in

these positions in the Support unit of the provincial health authority.

[340] Unlike Ward Aides, it appears the treatment or care of patients is not the primary

responsibility for Unit Aides. No position description for Unit Aides employed by IWK

Health Centre was supplied.

[341] Whether Unit Aides are more appropriately included in the Health Care or

Support unit at April 1, 2015 is an issue that requires further attention. Consequently, I

reserve jurisdiction on this issue to be addressed in a continuation of this arbitration.

Coordinator Information (reserved for continuation)

[342] Three unionized employees occupy positions in the Coordinator Information

Systems classification in the Health Care units in Colchester East Hants, Cumberland

and Pictou County health authorities.

[343] Two employees occupy positions in the Coordinator Information classification in

Clerical unit in Guysborough Antigonish Strait Health Authority. Two employees occupy

positions in this classification in the Health Care unit in the Cape Breton District Health

Authority.

[344] Whether these positions are more appropriately included in the Health Care,

Clerical or Support unit at April 1, 2015 is an issue that requires further attention.

Consequently, I reserve jurisdiction on this issue to be addressed in a continuation of

this arbitration.

Coordinator Telecommunications (reserved for continuation)

[345] Four unionized employees occupy positions in the Coordinator

Telecommunications classification in the Health Care units in the Colchester East Hants

and Pictou County health authorities and in the Clerical units in the Guysborough

Antigonish Strait Health Authority and IWK Health Centre. The employers propose

these positions be moved to the Support unit of the provincial health authority and IWK

¹⁸⁹Mandy Proulx Affidavit, December 8, 2014, ¶ 24

106

Health Centre. CUPE disagrees. NSGEU has not made a submission on this

classification position at IWK Health Centre.

[346] Whether these positions are more appropriately included in the Health Care,

Clerical or Support unit at April 1, 2015 is an issue that requires further attention.

Consequently, I reserve jurisdiction on this issue to be addressed in a continuation of

this arbitration.

Health Care Equipment Maintenance (reserved for continuation)

[347] The employers propose unionized employees in several classification positions

maintaining health care equipment be reassigned to the Support unit from the Health

Care unit. Associated positions in the Service unit were not identified. The proposed

positions are:

Classification

Employer Employees

Biomedical Engineer

CBDHA

CDHA

IWK

CDHA

4

3

25

11

1

2

5

4

1

9

1

Biomedical Engineer Non-Certified

Biomedical Engineering Tech

Chief Dialysis Technologist

Electronics Engineering Tech B

Electronics Engineering Tech C

Electronics Engineering Tech D

Environmental Technologist

Medical Physics Assistant 2

Orthotic Technician

Orthotics Prosthetics Tech

Othotics/Prosthetics Technician 1 Unregistered

Total

68

[348] Whether these positions are more appropriately included in the Health Care,

Clerical or Support unit at April 1, 2015 is an issue that requires further attention.

Consequently, I reserve jurisdiction on this issue to be addressed in a continuation of

this arbitration.

Information Technology (reserved for continuation)

[349] The employers propose unionized employees in several classification positions

providing information technology service in a following table be reassigned to the

107

Support unit from the Health Care unit. Associated positions in the Service unit were

not identified.

[350] Whether these positions are more appropriately included in the Health Care or

Support unit at April 1, 2015 is an issue that requires further attention. Consequently, I

reserve jurisdiction on this issue to be addressed in a continuation of this arbitration.

Sterile Processing Positions (reserved for continuation)

[351] Unionized employees are employed by all employers in sterile processing

functions necessary for the safe operation of a hospital, but not unique to hospitals.

The classifications, employers and unit distribution of the employee positions are in a

following table.

[352] There are employees in Health Care and Service units. As with other

classifications, the Capital District Health Authority unit composition is somewhat

anomalous, but for sterile processing it is not the only employer with employees in both

units.

[353] There are no employees in the identified classifications at the Guysborough

Antigonish Strait Health Authority. Perhaps some of its 194 employees in the Service

unit in positions in the Utility Worker Environment classification are engaged in sterile

processing.

[354] Whether these and any other sterile processing classifications and positions are

more appropriately included in the Health Care or Support unit at April 1, 2015 is an

issue that requires further attention. Consequently, I reserve jurisdiction on this issue to

be addressed in a continuation of this arbitration.

Miscellaneous and Overlooked Positions (reserved for continuation)

[355] There are other classifications with positions occupied by unionized employees

that have not been specifically addressed. Examples are Animal Quarters Technician

and Medical Photographer. There are likely others, including any identified since the

hearing or overlooked by me. There are classifications, like Wheelchair Service

Technician and others identified above, which are not identified by the employers, but

the unions propose for inclusion in their current units.

108

[356] The employers submit certain groupings of employees should be keep together.

One the employers identify is Care Team Assistants, Personal Care Workers, Patient

Support Workers, and Continuing Care Assistants, but it is unclear if each is a

classification for which there are no current positions of if these are simply descriptive

groupings.

[357] These and any others identified by a union or employer require further

investigation and attention. I reserve jurisdiction on these issues to be addressed in a

continuation of this arbitration.

109

Table 9: Distribution - Information Technology Classifications and Positions

Classification

1 Collaboration &Desktop Security Administrator

2 ComputerServices Officer2C

3 ComputerServices OfficerB

4 ComputerServices OfficerC

5 CoordinatorApplication

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA CDHA

Totals

1

8

6

1

2

3

2

1

5

2

1

3

6

2

3

1

4

9

2

7

8

6

1

6 CoordinatorInformation

2

1

7 CoordinatorInformation Systems

8 Data/Business Analyst - Pathology Informatics

9 Database Analyst

10 Information ProcessingTech A

11 Information ProcessingTech B

12 Information ProcessingTech D

13 Information SystemAnalyst

14 Information SystemTechnician

15 Mechanical Tech 2

16 Network Analyst2

17 Network Engineer

18 SeniorComputerOperator

19 SeniorEquipmentRepairTech 1

20 Systems Analyst1

1

2

5

2

1

2

4

1

2

1

2

3

21 Systems Analyst2

22 Systems Educator

23 Technical Analyst

4

3

1

24 Technical SupportRepresentative Level 1

25 Technical SupportRepresentative Level 2

26 Telehealth Analyst

45

3

1

45

3

1

27

1

3

Training& Productivity Analyst

110

Table 10: Distribution - Sterile Processing Classifications and Positions

SSDHA

SWNDHA

AVDHA

CEHHA

CHA

PCHA

GASHA

CBDHA

CDHA

Total

IWK

Sterile Processing

SPD Aide

1

10

14

24

6

2

55

SPD Team Leader

CSPD Technician

CSR Technician

OR SPD Liaison

2

10

6

16

41

4

1

OR SPD Supply

Tech

OR CSPD

Technician

1

7

1

9

Utility Worker SRD

SPD Team Lead

19

2

Sterile Processing

Technician

Sterile Processing

Technician

105

15

1

(Training)

Sterile Processing

Technician Staff

Developer

1

0

Unit SPD Aide

11

111

C.

Other Health Care Proposed for Clerical (reserved for continuation)

[358] The employers submit the occasion of the district health authority consolidation is

the opportunity to revise the composition of the Health Care unit and by consequence

the composition of both the Clerical and Support units by applying more restrictive

criteria for inclusion in the Health Care unit than fashioned and applied by the Labour

Relations Board.

[359] In effect, the employers submit the legislative intention is not only to address and

redress inconsistent inclusions of classification positions in multiple units, but also to

trim the size and composition of the Health Care unit by generally revisiting bargaining

unit composition as was stated in the second “fundamental flaw” in August in response

to the unions’ bargaining association proposal.

[360] On closer examination, the central thrust is to revisit the bargaining unit

composition structure that emerged at the time of the creation of Queen Elizabeth II and

treated the Health Care unit as a default or residual unit based on civil service

classification and pay plans. Most of the classifications the employer proposes are in

the Capital District Health Authority. Some include the same or similar classifications in

the other district health authorities where the employees are represented by CUPE or

Unifor local unions. None are represented by the NSNU.

[361] The history of the employers’ concern is rooted in decisions made before the

creation of the Capital District Health Authority and collective bargaining dispute

resolution with the Capital District Health Authority since 2000. The beginnings of the

background are summarized by NSGEU Servicing Coordinator Grant Vaughan.

The creation of the Queen Elizabeth II Health Sciences Centre involved the

devolution of the Victoria General Hospital employees from the Civil Service and

the merger of the Victoria General Hospital with the Camp Hill Medical Centre,

the Nova Scotia Cancer Treatment and Research Foundation and the Nova

Scotia Rehabilitation Corporation.

**********

The employees of the Nova Scotia Cancer Treatment and Research Foundation

were included in a single bargaining unit and the employees at the Camp Hill

Medical Centre were divided into four bargaining units.

The terms and conditions of employment for employees from the Civil Service

were different from those that prevailed outside of the Civil Service; in particular,

employees who came from the Civil Service generally had superior employment

112

benefits and higher wages than the other groups; in a few instances positions

from outside the Civil Service were higher paid.

In 1998 NSGEU and the Queen Elizabeth II Health Sciences Centre negotiated a

Master Agreement governing all unionized employees. The significant feature of

the Master Agreement was the "leveling up" of the wages of all employees to the

highest level.

The leveling up exercise involved adopting the civil service classification system

and applying it beyond the Victoria General Hospital to the other parts of the

Queen Elizabeth II Health Sciences Centre.

The adoption of the Master Agreement, for the most part, had the effect of

establishing wage parity between the higher paid Civil Service positions for

employees who had been employed in parts of the Queen Elizabeth ll Health

Sciences Centre other than the Victoria General Hospital.

One result of the leveling up exercise was that bargaining units represented by

the NSGEU outside of the Queen Elizabeth II Health Sciences Centre were able

to negotiate wage parity with the Queen Elizabeth II Health Sciences Centre.

I was responsible for the implementation of wage parity for NSGEU bargaining

units in acute care services outside of the Queen Elizabeth ll Health Sciences

Centre; for example, working with the Nova Scotia Association of Health

Organizations (the predecessor to the Health Association of Nova Scotia) at the

IWK Health Centre, the classifications and wage rates from the Queen Elizabeth

II Health Sciences Centre Master Agreement were extended to employees

represented by NSGEU.

The Capital District Health Authority was established in 2001 and involved the

merger of the Queen Elizabeth ll Health Sciences Centre with several local

hospitals previously operated by the Central Regional Health Board; NSGEU

became the bargaining agent of all of the unionized employees of the Capital

District Health Authority other than Registered Nurses at the several local

hospitals.

NSGEU and the Capital District Health Authority agreed to choose a new

classification system to apply to all Capital District Health Authority unionized

employees except Registered Nurses. The system was developed through a

Joint Job Evaluation process.

I led this Joint Job Evaluation process for NSGEU and participated with the

Employer on a Joint Steering Committee applying the new classification system.

The Joint Job Evaluation and classification process at the Capital District Health

Authority resulted in standardized classifications and was the basis for the

establishment of wage rates at the Capital District Health Authority.¹⁹⁰

[362] The 2004 interest arbitration board underscored the challenge in fashioning “a

compensation award which requires widely varying wage increases for numerous

classifications across a large bargaining unit.”¹⁹¹

¹⁹⁰Grant Vaughan Affidavit, November 28, 2014, ¶ 12; 15 - 25

¹⁹¹Capital District Health Authority [2004] N.S.L.L.A. No. 16 (Kaplan), ¶ 12

113

[363] The employers’ submission to change the range, composition and size of the

Health Care unit is explained in its statement on Criteria for Determining Bargaining Unit

Placement, which begins:

The definitions set forth in the Health Authorities Act were used as a basis for

determining the appropriate bargaining Unit placement of classifications in the

acute care sector. A key consideration in making these recommendations was

the notion set out in the definitions that group composition should be based on

the primary responsibilities of classifications included in the bargaining unit.

Specifically, the core functions that formed the basis of each role, and the

amount of time spent on these core functions, were considered when making

recommendations for group placement.

To aid in the placement of

classifications, the criteria detailed below were developed. These criteria build

upon the definitions outlined in the Health Authorities Act to create a framework

for decision making.

[364] For the Health Care unit, the employers began with the premise that licensure or

being one of the twenty regulated occupations is principally what determines whether an

employee is “engaged primarily in a clinical capacity to provide patient care.”

The majority of classifications in this bargaining unit will be required to be

licensed under a regulatory body or have certification in a specific health care

field, including Allied Health professions (e.g., Physiotherapists and Occupational

Therapists), as well as related assistive roles (e.g., Physiotherapy Aides and

Occupational Therapy Assistants). Also included are Care Team Assistant,

Personal Care Worker, and Acute Care Worker classifications, which are

required to assist patients with personal care and may also perform basic nursing

procedures, such as taking the patient’s pulse. Certification and registration

requirements ensure that clinical standards of care are upheld.

This bargaining unit will also include classifications that may not have patient

contact on a regular basis, but provide clinical care by performing functions that

are critical to the clinical treatment of patients, and classifications that collaborate

closely with other team members in providing patient care. This includes, for

example, Medical Laboratory Technologists and Pharmacists, as well as related

assistive roles (e.g., Medical Laboratory Assistant, Pharmacy Assistant).¹⁹²

The criteria are providing patient care in a clinical capacity, but limited to those with a

license or certificate plus others who collaborate in delivering “direct” patient care.

[365] The employer also applied operational considerations:

… there are a small number of instances in which it is not apparent from the job

descriptions that certain classifications should be placed in the group that is

recommended. Additional information gathered from the employers revealed

that, in some instances, these classifications perform work that is not specified in

the job description that would support its placement in the bargaining unit.

¹⁹²Criteria for Determining Bargaining Unit Placement, p. 1

114

In addition, it was identified that placing these roles in a bargaining unit separate

from other related roles would have an impact on the day-to-day operations of a

function. These roles are considered to function in a Models of Care capacity,

such that the functions of each role are fully integrated to provide clinical care in

a team setting. Within these Models of Care functions, roles are interdependent

to the extent that one role cannot function effectively without the other. This

interdependence creates a community of interest in respect of the nature of the

work being done, and supports placing these classifications in the same

bargaining unit. In these instances, it may be viewed as the Models of Care

team that meets the definitions set forth in the Health Authorities Act.

Furthermore, placing these roles in separate groups would create significant

recruitment and retention challenges. There is a natural career progression

among these related roles, and placing them in different bargaining units would

have a negative impact on that progression. Placing these roles in different

bargaining units may cause incumbents to choose to move into positions that

would maintain their seniority and job security, which would result in a loss of

knowledge and expertise as well as create instability within a function.

Classifications that were placed in bargaining units in part based on these

considerations include:

 PACS Coordinator, DIIS Coordinator, DIS Technologist, and LIS

Coordinator roles have been placed in the Healthcare group with

Diagnostic Imaging Technologists, Radiology Technicians, and Medical

Laboratory Technologists.

 Professional Practice Coordinators and Clinical Educators have been

placed in the Healthcare group with Allied Health professionals and other

care providers.

 Patient Navigator roles (e.g., Access Navigators, Wellness Navigators,

and Rehabilitation Navigators, etc.) have been placed in the Healthcare

group with Allied Health professionals and other care providers.

 Radiographic Assistant roles have been placed in the Healthcare group

with Diagnostic Imaging Technologists and Radiology Technicians.¹⁹³

Several of the classifications listed were initially proposed by the employers for inclusion

of the Clerical or Support units.

[366] Using this approach, the only unit classification positions the employers propose

move to the Health Care unit are Dietetic Technicians. It does not propose any position

movement from the Clerical unit or the Nurses unit. “Roles currently in Nursing

bargaining units (both NSNU and NSGEU) were presumed to require an RN or LPN

certification, and, therefore, were not considered for movement into other groups.”¹⁹⁴

[367] The third criteria the employer applied is to have related roles in the same unit.

¹⁹³Criteria for Determining Bargaining Unit Placement, pp. 3 - 4

¹⁹⁴Criteria for Determining Bargaining Unit Placement, p. 1

115

In reviewing the classifications, it was identified that a number of roles should be

placed in the same bargaining unit for similar reasons to those outlined above. In

contrast to the roles identified above, job descriptions for these roles clearly

indicate that they should be placed in the recommended bargaining units. It is

also important for these roles to remain together for the team-based reasons

identified above. Specifically, placing these roles in a bargaining unit separate

from other related roles would have an impact on the ability to effectively carry

out work functions as they collaborate in a team capacity.

Furthermore, placing these roles in separate bargaining units would result in

recruitment and retention challenges.

Classifications that should be placed in the same bargaining unit include:

 Recreation Therapists, Recreation Therapy Aides, Recreation Therapy

Assistants

 Physiotherapists, Physiotherapy Aides, Physiotherapy Assistants

 Occupational Therapists, Occupational Therapy Assistants

 Dental Hygienists, Dental Assistants

 Pharmacists, Pharmacy Technicians, Pharmacy Assistants

 Psychologists, Psychology Technicians

 Medical Laboratory Technologists, Medical Laboratory Assistants

 Diagnostic Imaging Technologists, Radiology Technicians, Diagnostic

Imaging Tech Assistants,

 Radiographic Assistants

 Respiratory Therapists, Respiratory Therapy Aides

 All Information Technology roles

o Application Analyst

o Collaboration & Desktop Security Administrator

o Computer Services Officers

o Information Coordinators

o Telecommunications Coordinators

o Data/Business Analysts

o Database Clerks

o HASP Training Analyst

o Information Processing Techs

o Information Systems Analysts

o Information Systems Technicians

o Network Analysts

o Senior Computer Operators

o Systems Analysts

o Systems Educators

o Technical Analysts

o Technical Support Representatives

o Training & Productivity Analysts

It is also important to note that Care Team Assistants, Personal Care Workers,

Patient Support Workers, and Continuing Care Assistants should be placed in the

116

same bargaining unit, as they all perform the same functions. That is to say, the

roles are the same but have different titles.¹⁹⁵

[368] The employers submit the preferred approach is to direct union assignment

based on criteria, not the majoritarian or plurality approach of the unions which places a

classification in units where the largest number currently is and ignores the need to

keep closely connected groups of employees together covered by one collective

agreement.

[369] With this approach, the employers’ propose employees in several classification

positions be moved out of the Health Care unit and placed in the Clerical or Support

units of the two health authorities. The initial proposed changes in the size of the units,

including elimination of the Public Health and Addictions Services units and movement

of Licensed Practical Nurses, was:

Units

Before

7,714

8,715

3,681

3,295

961

After

9,599

6,317

4,261

4,189

Nurses (to Nursing)

Health Care

Clerical

Service (to Support)

PH & AS

[370] The employers’ proposal changes the Health Care unit from the broad one

fashioned by the Labour Relations Board in 1973 and reaffirmed in 1981 and agreed to

over four decades into a modified allied health professional unit. The employers submit

the result could be an easier path to finding compensation resolutions in collective

bargaining by varying the range of circumstances to be addressed. With reference to

the Capital District Health Authority, this is described as follows:

Because there is no shared community of interest among all classifications within

the Health Care bargaining unit at CDHA, I have been told by Dave Collins,

Manager, Labour Relations at CDHA, and I believe that there have been

challenges when bargaining new collective agreements. For example, a

retention incentive of an additional 3.5% salary increment upon completion of 25

years of service was awarded to all classifications in the Health Care bargaining

unit, regardless of whether there were retention challenges for each

classification.

¹⁹⁵Criteria for Determining Bargaining Unit Placement, pp. 4 - 5

117

The Health Authorities Act has the potential to rectify some of the challenges that

result from a variety of classifications being included in any bargaining unit,

including the Health Care bargaining unit at CDHA, by creating bargaining units in

which classifications share common interests.¹⁹⁶

It also increases size, range, complexity and variation in the Clerical and Support units.

[371] The NSGEU submits it also diminishes the strength of the Health Care unit in

collective bargaining and seeks to shift the existing countervailing balance of power

away from the NSGEU, which has represented the Capital District Health Authority

Health Care unit, in favour of the future provincial health authority employer after

seeking to limit the NSGEU’s representation of nurses. The NSGEU uses the Health

Care unit at Capital District Health Authority as the as the model for its submissions on

the provincial health authority Health Care unit.

The Health Care bargaining unit at the Capital District Health Authority has two

essential features; it includes the classifications that were included in the

Technical Classification and Pay Plan, Professional Classification and Pay Plan

and the Health Service Classification and Pay Plans (HSA) and (HSB) in the Civil

Service and it performs the function of a residual bargaining unit.

The broad scope of the Health Care bargaining unit reflects the unique nature of

the Queen Elizabeth II Health Sciences Centre which provides health services

which demand a high level of technical, professional employees and the

employees other than Registered Nurses who are directly engaged in the care of

patients.

The classifications included in the Health Care bargaining unit at the Capital

District Health Authority are those that perform functions that are directly or

indirectly related to the assessment and treatment of patients, those whose

functions involve regular collaboration with other team members in providing

patient care, those who perform work which is unique to the assessment and

treatment of patients in acute care facilities and, to a certain extent classifications

which are not unique to the provision of health services but which are closely

connected due to the nature of their work with the employees who are performing

work which is unique to healthcare.¹⁹⁷

[372] The NSGEU says it is a “residual” unit because the original residual unit, Service

Support, is not a residual unit in the Capital District Health Authority.

These unique features of the Queen Elizabeth II Health Sciences Centre resulted

in a bargaining unit configuration at the Queen Elizabeth II Health Sciences

Centre and the Capital District Health Authority which features three narrowly

defined bargaining units and one large unit made up of technical and

professional employees as well as employees who provide health care services

directly or indirectly to patients.

¹⁹⁶Mandy Proulx Affidavit, December 8, 2014, ¶ 18 - 19

¹⁹⁷Grant Vaughan Affidavit, November 28, 2014, 48 - 50

118

Unlike the standard hospital bargaining units described in guidelines adopted by

the Labour Relations Board, the Service Support bargaining unit at the Capital

District Health Authority is comprised of employees directly involved in physical

plant operation and maintenance, cleaning, food preparation and distribution and

laundry services.

The narrow scope of the Service Support bargaining unit reflects the initial

decision by NSGEU and the Queen Elizabeth II Health Sciences Centre to

combine the employees in the Maintenance and Operational Services

Classification and Pay Plan and the Service Classification and Pay Plan in place

at the Victoria General Hospital to form the Service Support bargaining unit.

The Service Support bargaining unit did not function as a residual bargaining unit

and specifically did not include classifications of employees who in the Civil

Service would be classified in the Technical Classification and Pay Plan and the

Professional Classification and Pay Plan.

The classifications that have been included in the Service Support bargaining

unit at the Capital District Health Authority have a strong community of interest as

a result of the nature of their work and that bargaining unit had provided a stable

and cohesive framework for effective collective bargaining over the last several

rounds of bargaining.¹⁹⁸

[373] The employers accept this characterization and reply:

While these roles conduct work that is unique to the provision of health services,

they do not fit within the criteria for the Health Care unit set forth in the Health

Authorities Act, as the primary responsibility of these roles is to build and

maintain equipment used in a health care setting.

Instead, this work is a better fit for the Support bargaining unit. The criteria set

forth for this bargaining unit in the Health Authorities Act state that roles are

“engaged primarily in a non-clinical capacity to provide operational support in

respect of the provision of health services”.¹⁹⁹

[374] Collectively, the unions submit the employers take too narrow an approach to

what is clinical by limiting it to “direct” patient care not “primarily in a clinical capacity to

provide patient care” ignoring broader based collaboration. They do so without being

able to articulate the nature of what is referred to in generalist terms as “Models of

Care.” A model of care is the way health care services are organized and delivered.

When asked, the current employers do not know what model of care for what services

the future employer will embrace and posit that it will be years before whatever is

envisioned will be implemented.

[375] Collectively, the unions submit this is too much on top of everything else and

creating unnecessary turmoil – a new employer with new leadership; changes in

¹⁹⁸Grant Vaughan Affidavit, November 28, 2014, 40 - 44

¹⁹⁹Mandy Proulx Affidavit, December 8, 2014, ¶ 26 - 27

119

bargaining agents; loss of local union leadership; realignment of classifications; and

commencement on April 2, 2015 of province-wide collective bargaining for all four

bargaining units for entirely new collective agreements in which the unions will seek to

include the best of current collective agreements (leveling up); and anticipate the effects

of shared service restructuring.

[376] The unions submit this is exacerbated by the fact change is not being imposed or

managed “carefully” as was forecast in the Minister’s report – “Change of this

magnitude must be done carefully, and cannot be done successfully unless those who

work within the system are engaged and involved.”²⁰⁰

[377] Unifor submits:

The employers’ principles relating to classification realignment; as set out in its

November 25, 2014, document entitled “Criteria for Determining Bargaining Unit

Placement” includes a host of subjective concepts that are not in keeping with

either the Act or with the concept of creating the least amount of disruption to

workers in their provision of health care services.

**********

… the employer includes in the Health Care Bargaining Unit those employees

that “may not have patient contact on a regular basis, but provide clinical care by

performing functions that are critical to the clinical treatment of patients….” While

this may be understandable, it is not in keeping with the structures of the Act or

the historical bargaining unit alignment that some classifications have had with

others. The employers’ subjective elements create a situation where the

movement, or non-movement, of classifications is determined not by negotiation

between union and employer, not by historical alignment, and without regard to

the express terms of the Act. More disturbing, in Section 2 of its document the

employers introduce concepts of: related rules, recruitment and retention, career

progression and team capacity; none of which relate to the term “clinical” or to

any of the other factors by which classification determinations are made.²⁰¹

[378] Unifor submits in determining community of interest for bargaining unit groupings

in the context of restructuring the history of collective bargaining should be given

greatest weight among the commonly accepted factors.

In determining a community of interest, the Nova Scotia Labour Board has

endorsed “the framework for analysis provided by George W. Adams in his text

Canadian Labour Law (Aurora, Ont.: Canada Law Book, loose leaf). (Acadia

University Faculty Assn. v. Acadia University [2003] N.S.L.R.B.D. No. 1) Those

factors include: (1) similarity in the scale and manner of determining earnings; in

employment benefits, hours of work and other terms and conditions of

²⁰⁰Health Care Conversations: What We Heard, Nova Scotia, June 2014, p. 1

²⁰¹Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 57; 59

120

employment; in the kind of work performed; and in the qualifications, skills and

training of employees; (2) the frequency of contact or interchange among

employees and the geographic proximity of work places; (3) continuity or

integration of production processes; (4) common supervision and determination

of labour relations policy; (5) relationship to the administrative organization of the

employer; (6) history of collective bargaining; and (7) desires of affected parties

and employees.

With respect to all of these, it is Unifor’s position that what is being dealt with in

this proceeding is a province wide health care reorganization and classifications

which have been grouped together for many years in a regionally based structure

where there has been significant interaction between unions during bargaining;

therefore if there is to be any application of the Adams’ factors the greatest

weight should be given to adhering to the historical patterns and creating the

least disruption possible for the employees.

In keeping with the primary rule of “if it ain’t broke, don’t fix it”, classifications

should not be moved unless failing to would result in serious labour relations

harm.²⁰²

[379] The unions submit the employers have not identified any “concrete,

demonstrable problems” that will result from continuing to include in the Health Care

units the groups of employees that have always been in the unit and are not in another

bargaining unit.²⁰³The criteria the employer seeks to apply is “no more principled than

retaining the status quo and is certainly more disruptive with respect to employees and

the delivery of health care.”²⁰⁴

[380] The unions submit the employers are looking to what they regard as their past

problems in impasse resolution, such as the retention incentive in Health Care collective

agreements – “Upon completion of twenty-five years of service with the Employer, all

permanent employees will receive an additional salary increment of 3.5% greater than

the highest rate in effect for the applicable classification.”

[381] The unions submit the employers are not looking to the unknown future models

of care or the problems being created for the successor provincial health authority, such

as paying and costly tracking employees this retention incentive benefit some

employees currently have and are promised they will not lose when they are moved to

new bargaining units and given grandparent rights under new collective agreements.

²⁰²Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 65-67; See also Cambridge Sydney Ltd, 2011

NSLB 84 (). ¶ 23 (cited as “Cambridge Suites” in Submissions of the Employer, December 4, 2014,

¶ 125

²⁰³Active Mold Plastic Products, 1994 9940 (ON LRB), ¶ 30

²⁰⁴Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 77

121

Or the problems it will create when these employee are working with other employees in

the new unit under the same collective agreement who do not have this benefit. Unless,

of course, it is given to everyone, which the employer would not agree to in past

collective bargaining.

[382] A compounding factor is the disclosed limitations of the SAP relational database

management system that does payroll system and which optimistically will not be able

to respond to organizational change until, at least, September 2015 when it is hoped

there will be a unique identifier for the new provincial health authority embedded in the

relational database.

SAP is the system of record for all human resources employee data, and also

processes the bi-weekly payroll on behalf of the Employers. It is used to

generate seniority lists, provision group benefits (medical, pension, etc.), process

scheduling system and other absence and attendance data, and payroll including

generating an electronic pay advise, Electronic Funds Transfers to financial

institutions, and more.

SAP also interfaces directly with a number of third party software systems

including staff scheduling interfaces, benefits providers, recruitment systems and

pension providers. Employers identify and request changes to the system as

required, and we work together to identify business impacts, system impacts and

associated timelines to implement.

SAP is currently set up with 10 unique SAP Company Codes, one for each of the

Employers. Only the current collective agreements which are applicable to the

current Employers are configured in SAP for that Employer. While some of the

configuration is the same, much of it is different, and the same configuration does

not exist in all 10 Company Codes.

I, and the EBS [Enterprise Business Support] team, have worked with SAP

Canada to determine the best approach to support the new Provincial Health

Authority (“PHA”) requirements, and have confirmed a new SAP Company Code

is required. Setting up the PHA in SAP, and moving of all the employees into

that new Company Code will be the final step in the process.

Presently, when an employee working under a collective agreement takes a job

under a different collective agreement with a different Employer, the employee is

treated by the system as a new employee because of the different Company

Codes. When an employee working under a collective agreement takes a job

under a different collective agreement within an Employer, the terms and

conditions configured for that collective agreement apply.

We are limited in what SAP can support across collective agreements until the

new Company Code is configured. The exception is where SAP has been

configured to account for collective agreement provisions which apply already

across these boundaries. These same boundaries will exist at the time of the

DHA merger until such time as the new SAP Company Code configuration can

be completed.

122

The EBS implementation partner for the new SAP Company Code is CGI.

Together, we have determined that within SAP it is not possible to have existing

employees governed by a different collective agreement while maintaining the

former provisions until the new Company Code is configured. Building the new

Company Code requires a significant amount of technical effort and testing to

ensure payroll is not negatively impacted. In order to do this we need to know

the bargaining unit composition, bargaining agent for each, and the identity of

any Operating Agreements, if they are used. We then need to build the

Company Codes, move the employees into them, and complete the necessary

testing (including payroll before and after comparisons). At the time of the

merger of the DHAs, the new SAP Company Code will not be configured.

Presently our operating assumption is that as of April 1, 2015 existing employees

will continue to be set up in the SAP system under their current Company Codes

with their former Employer under their present collective agreements. This will

mean that all provisions currently configured in the SAP payroll system for these

employees will remain the same April 1, 2015.

While the maintenance of current provisions as configured in SAP as of April 1,

2015 is fully supportable, this is only to the extent that current employees stay

within the areas in which those provisions are presently configured. Again, this is

due to the system configuration of the present SAP Company Codes. Until the

new company Code is configured, SAP will not be able to support the continued

application of the former collective agreement provisions in relation to employees

who take a job in an area in which their present collective agreement is not

configured.

SAP currently calculates union dues based on the SAP Company Code and

associated collective agreement. SAP is able to continue to deduct union dues

from employees, at the same rates as previously deducted, according to the

provisions of their present collective agreements and remit them to whatever

bargaining agent is applicable after April 1, 2015. Any changes requested to the

rate of deduction however, would not be supported by SAP until the new

Company Code is in place due to the fact the system is configured by collective

agreement, not by employee.²⁰⁵

[383] The unions identify there are foreseeable problems with the provincial health

authority employers deducting union dues from employees at a higher or lower rate than

the one payable to the new union representing them at April 1, 2015.

[384] Individual local unions resent the disruption and threat to their continued

existence and representation because neither they nor their members “are the cause of

what the government says the legislation is designed to address.” ²⁰⁶These are past

collective bargaining process delays, the number of collective agreements and having

Licensed Practical Nurses outside the Nursing unit.

²⁰⁵Jamey Martell Affidavit, December 1, 2015, ¶ 6 - 16

²⁰⁶Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 55

123

Bill 1 is apparently designed to “rationalize” the administration of the health care

delivery system, including the Liberal Government’s concerns about the process

of collective bargaining in the health care sector.

*********

Throughout the time period between stating its intention to merge the Health

Care Districts and its introduction of Bill 1, the unions tried to find a way of

addressing the concerns of government while respecting the rights of workers to

remain in the unions they had chosen and the collective agreements they had

fought for. However, during this entire period the Government never really let it

be known what “all the concerns of government” were. The unions were

therefore at a complete disadvantage in trying to find a solution when every

attempt was met with a flat rejection.²⁰⁷

[385] The Nova Scotia Labour Board guidelines establish a Health Care unit of

employees who are “directly concerned with the treatment of patients.” The legislation

describes the unit as employees who “occupy positions that require them to be engaged

primarily in a clinical capacity to provide patient care.” A clinical capacity is being

involved or concerned with the observation and treatment of living patients. This does

not mean an employee must be at a bedside.

[386] The employers have recognized this to some extent in the application of its

criteria “Collaborate with other team members in delivering direct patient care.” How far

the team extends and the extent to which the status quo should be maintained requires

closer examination.

[387] The five groups of Health Care employees the employers propose moving to the

two health authority Clerical units are in the following table. Two groups are exclusively

in the Halifax Regional Municipality at the Capital District Health Authority and IWK

Health Centre.

Table 11: 5 Groups; 92 Classifications; 250 Positions

Health Care Groups and Classifications

Employer

Union

# Employees

Proposed for Clerical Unit

Coordinate & Planning Function

1 Advisor Patient & Public Engagement

2 Childhood Educator

CHDA

NSGEU

1

8

3 Coordinator Affiliate Placement

4 Coordinator Clinical Product

5 Coordinator Community Health Board

²⁰⁷Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 37 – 38; 40

124

6 Coordinator Early Psychosis Education

7 Coordinator Education & Advanced Trauma

8 Coordinator Health Promotions

9 Coordinator Palliative Care

CHDA

AVDHA

CHDA

PCHA

AVDHA

CHDA

CBDHA

AVDHA

CHDA

IWK

CHDA

SWNDHA

CEHHA

PCHA

AVDHA

CBDHA

CHA

NSGEU

CUPE

NSGEU

CUPE

NSGEU

CUPE

1

2

1

5

1

2

7

10 Coordinator PHC Connections

11 Coordinator PHC Program

12 Coordinator Primary Health Care

13 Coordinator Primary Health Care Project

14 Coordinator Simulation Services

15 Coordinator Stroke Program

16 Coordinator Trauma Registry

17 Health Records Administrator

18 Health Records Administrator

19 Health Records Administrator

20 Health Records Administrator

21 Health Records Administrator B

22 Health Records Technician

23 Health Records Technician

24 Health Records Technician

25 Health Records Technician

26 Health Records Technician

27 Health Records Technician

28 Health Records Technician

29 Health Records Technician

30 Health Records Technician

31 Health Records Technician B

32 Health Records Technician in Training

33 Knowledge Exchange Facilitator

34 Librarian Educator

CUPE

NSGEU

CUPE

NSGEU

Unifor

NSGEU

Unifor

NSGEU

7

5

3

CHDA

IWK

18

12

22

9

2

1

2

1

2

1

GASHA

CHDA

GASHA

CHDA

35 Program Admin Officer Cancer Care NS

36 Project Coordinator

37 Project Coordinator NSH

38 Project Officer Education

39 Project Officer Rehab

1

40 Project Officer Research

Total

141

Management of Data & Information

41 Data Integrity Auditor

42 Data Integrity Officer

IWK

NSGEU

1

5

1

3

CDHA

43 Registry Assistant

44 Research & Statistics Officer 1A

45 Research & Statistics Officer 2

46 Research & Statistics Officer A

125

47 Research & Statistics Officer B

48 Research & Statistics Officer C

49 Tissue Bank Customer Service Representative

Total

CDHA

NSGEU

2

1

17

Closely Related to Included Classifications

50 Architectural Assistant 2

51 Audiovisual Technician B

52 Community Development Advisor

53 Coordinator Clinical Data

54 Coordinator Continuing Care Education

55 Coordinator Diversity & Inclusion

56 Coordinator French Language

57 Coordinator Healthy Built Environment

58 Coordinator Safety

59 Coordinator Supported Work

60 Coordinator Workplace Health Promotion

61 Drafting & Illustration Tech

62 Financial Services Officer A

63 Funding Officer

CDHA

IWK

NSGEU

1

4

1

3

1

CDHA

IWK

CDHA

64 Graphic Designer

65 Graphic Designer

66 Health Interpretation Officer

67 Product Factor Utilization Officer

68 Registry Assistant (above also?)

69 Safety Response Officer

70 Supply Technician A

1

16

1

71 Supply Technician B

72 Voice Analyst

2

Total

44

Involved in or Essential to Treatment

73 Coding Classification Specialist

74 Coordinator Funding

75 Coordinator Funding Remedial Seating

76 Coordinator Volunteer Services

77 Coordinator Volunteer Services

78 Coordinator Wellness Program

79 Health Educator

80 Health Promotion Team Lead

81 Quality Safety & Accountability Advisor

82 Quality Technician

83 Resource Facilitator

84 Screening Access Officer

Total

SSDHA

IWK

CUPE

NSGEU

CUPE

NSGEU

CUPE

NSGEU

CUPE

NSGEU

CUPE

5

2

1

5

1

9

1

30

SWNDHA

CDHA

GASHA

CDHA

PCHA

CDHA

PCHA

CDHA

NSGEU

126

Library

85 AV Library Technician

86 Health Sciences Librarian

87 Librarian

88 Librarian

89 Librarian 1

90 Library Assistant

91 Library Assistant

92 Library Technician

IWK

CBDHA

CEHHA

PCHA

SWNDHA

IWK

NSGEU

Unifor

1

2

10

18

CUPE

NSGEU

CDHA

Total

[388] The accuracy and completeness of this list of classifications and groupings

requires further review and discussion by the employers and unions. Consequently, I

reserve jurisdiction on this issue to be addressed in a continuation of this arbitration.

7.3

Clerical Unit Composition

[389] Most of the classification positions the employers propose for inclusion in the

Clerical unit have been addressed above.

Resource Facilitator (Clerical)

[390] Locals of CUPE represent 24 employees in Resource Facilitator classification

positions employed by three district health authority employers in the planned Northern

Management Zone of the provincial health authority. The employees are in Clerical

units with two employers and the third employer’s Health Care unit. The IWK Health

Centre does not employ Resource Facilitators.

[391] CUPE agrees with the employers that Resource Facilitators should be in the

Clerical unit of the provincial health authority.

[392] The unionized employees in this classification position will be included in the

Clerical unit for the provincial health authority at April 1, 2015.

Buyers, Senior Buyers & Procurement Coordinators (Clerical)

[393] In the Capital District Health Authority, thirteen Senior Buyers are in the Health

Care unit. In four other district health authorities, Buyers are in Clerical units. All these

employees perform procurement functions.

127

[394] The Clerical bargaining unit is described as: “composed of all unionized employees

who occupy positions that require them to be engaged primarily in a non-clinical capacity

to perform functions that are predominantly clerical or administrative.”²⁰⁸

[395] The NSGEU submits the Senior Buyer is functionally tied to the positions in the

Health Care unit. The related Coordinator Procurement position in the Procurement

Department is responsible to ensure clinically acceptable products and services for

patients are delivered at the best possible price.²⁰⁹The position is described:

The Procurement Coordinator is responsible throughout CDHA for the effective

and efficient procurement of all goods/services including Capital Equipment

throughout the district. It is the responsibility of this position to manage a group

of buyers and to ensure that clinically acceptable products and services are

delivered at the best possible price. This position is also responsible for using

the Public Tendering System to request process and information from companies

worldwide to ensure best competitive bidding. It is also the responsibility of this

position to ensure that buyers have the best possible direction to be able to do

their jobs effectively and that through them, goods arrive at the various

institutions in a timely manner and that the appropriate goods are purchased.

[396] While the Capital District Health Authority has a position description for a Material

Management Department classification titled Medical/Surgical Products Coordinator in

the Health Care bargaining unit, this position is not on the employers’ lists.

[397] Procurement positions have more community of interest with employees in the

Clerical unit than the Health Care unit. The unionized employees in these classification

positions will be included in the Clerical unit for each health authority at April 1, 2015.

Stores (Clerical)

[398] The following table contains the current distribution and bargaining unit

assignment of employees in stores classifications. The employers propose and CUPE

agrees the unionized employees in these positions should be included in the Clerical

unit of the provincial health authority.

[399] The unionized employees in these classification positions will be included in the

Clerical unit for the provincial health authority at April 1, 2015.

²⁰⁸s. 90(1)(c)

²⁰⁹Grant Vaughan, Affidavit , November 28, 2014, ¶ 62(i)

128

Table 12: Distribution of Stores Classifications and Positions

SSDHA

SWNDHA

AVDHA

CEHHA

CHA

PCHA

GASHA

CBDHA

CDHA

Total

IWK

Stores Clerk

11

7

13

1

9

4

6

1

19

69

Senior Stores Clerk

Stores Team Lead

Stores Clerk A

Stores Clerk B

Stores Clerk C

2

4

38

19

2

38

19

2

Stores Delivery

Clerk

1

5

0

Clerk 2 - Stores

Order Clerk

5

1

4

Shipping/Receiving

Clerk

0

129

Eight PH&AS Clerk and Secretarial Classifications (Clerical)

[400] The employers and NSGEU agree the following classifications and the unionized

employees occupying positions in the Public Health and Addiction Services units are to

be included in the provincial health authority Clerical unit.

Classification

1 Clerk 1

2 Clerk 2

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA Totals

1

2

Clerk 2 Continuing

Care

Clerk 3 Financial

ContinuingCare

3

4

2

1

2

4

1

2

5 Clerk 3/Secretary 2

6 Secretary 1

1

5

3

5

3

2

5

1

4

15

7

28

29

3

6

Secretary 1

7

2

6

2

ContinuingCare

8 Secretary 2

7

3

7

12

11

55

125

[401] CUPE did not make submissions. A CUPE local union represents seven

employees in Secretary 2 positions in this group.

[402] The unionized employees in these classification positions will be included in the

Clerical unit for the provincial health authority at April 1, 2015.

Maintenance Planner (Support)

[403] Unionized employees occupy positions in this classification in the Clerical unit in

the Cape Breton District Health Authority and the Service unit in the South Shore

District Health Authority. The employers and CUPE agree these positions are to be in

the Support unit of the provincial health authority.

[404] I agree. The unionized employees in these classification positions will be

included in the Support unit for the provincial health authority at April 1, 2015.

Twenty Five PH&AS Classifications (reserved for continuation)

[405] The following table lists the classifications and positions the NSGEU submits

should be in the provincial health authority Health Care unit. It applies the same

130

approach it takes for the classifications and occupied positions in the Capital District

Health Authority Health Care unit.

Table 13: PH&AS Classifications Reserved for Continuation

Classification

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA Totals

1 CoordinatorEducation

1

CoordinatorPrevention &

Health Promotion

CoordinatorPrevention

Project

CoordinatorQuality

Management

CoordinatorSocial

Marketing

2

1

2

5

3

2

1

2

7

2

1

4

1

5

2

Data & SystemQuality

Leader

6

1

7 Financial Services Officer2

8 Health Educator

9 Health Equity Promoter

10 Health Equity TeamLead

11 Health Promoter

1

2

3

7

1

10

1

2

1

4

1

4

2

1

Health Promotion &

Prevention TeamLead

Health Promotion

Specialist

Healthy Development

Team Lead

KnowledgeExchange

Facilitator

Planning&Development

Officer

Prevention &Education

Officer

12

1

6

2

6

1

4

13

14

1

15

16

1

17

3

Program Admin Officer

18 Drug Addiction Health

Promotion

Program Admin Officer

19 GamblingHealth

Promotion

1

2

1

Program Admin Officer

GamingStrategy

20

1

2

Program Admin Officer

21 Smoking

Treatment/Cessation

Program Admin Officer

Tobacco Reduction Health

22

1

131

Promotion

Program Administration

Officer4

24 ProjectAssistant

23

1

Research & Statistics

Officer

25

1

2

65

[406] Whether these classifications and positions are more appropriately included in

the Clerical or Health Care unit at April 1, 2015 is an issue that requires further

attention. Consequently, I reserve jurisdiction on this issue to be addressed in a

continuation of this arbitration.

7.4

Support Unit Composition

[407] Two Coordinator classifications with positions in the Service unit and another unit

which the employers propose for inclusion in the support unit have been addressed

above.

Transportation Driver (Support)

[408] One employee in this classification position is in the Clerical unit employed by

Guysborough Antigonish Strait Health Authority and a second employee is employed by

the Cape Breton District Health Authority in the Health Care unit.

[409] CUPE agrees this classification position is appropriate for inclusion in the

Support unit, which is described as:

composed of all unionized employees who

(i) occupy positions that require them to be engaged primarily in a non-clinical

capacity to provide operational support in respect of the provision of health

services, and

(ii) are not included in the clerical bargaining unit.²¹⁰

[410] The unionized employees in these classification positions will be included in the

Support unit for the provincial health authority at April 1, 2015.

Three PH&AS Classifications (Support)

[411] The employer proposes three classifications – Cook, Housekeeping Aide and

Maintenance Worker – with six positions occupied by unionized employees of the Pictou

²¹⁰s. 90(1)(d)

132

County Health Authority in the Public Health and Addiction Services unit are to be

included in the Support unit of the provincial health authority. The NSGEU agrees.

[412] The unionized employees in these classification positions will be included in the

Support unit for the provincial health authority at April 1, 2015.

8.

SENIORITY INTEGRATION

[413] The “integration of seniority of unionized employees in each bargaining unit” is to

be determined.²¹¹With the exception of one issue, the unions and employer achieved

agreement that meets the basic principle that each employee in a bargaining unit is

given seniority of the same basis as other employees in the bargaining unit.

[414] The issue in dispute is whether the employers or individual regular employees

should bear initial responsibility to identify when an employee’s seniority date at April 1,

2015 with a health authority will be earlier than it currently is with a district health

authority because the employee is entitled to an adjustment based on casual hours

worked before becoming a regular employee for which the employee was not given

credit previously in calculating seniority.

[415] The agreed credit entitlement and retroactive adjustment is to harmonize

seniority among employees going into the same bargaining unit from disparate units

covered by differing collective agreement seniority provisions.

[416] The employer submits:

The employers accept the framework of the common proposal put forth by the

Unions. However, paragraph 2 of the proposal requires the Employers to identify

all employees who had casual hours back to January 1, 2008, determine the

number of those hours, and adjust their seniority. The employers submit that the

same end result can be accomplished by employees making a request to the

employer to check the records. Only the records of those employees who

believe they have such hours to be converted would need to be checked. The

employers believe this would greatly reduce the volume of work.²¹²

[417]

The employers identified some of the challenges some employers will face

retrieving records that pre-date their use of the SAP payroll system. One is that legacy

data from a prior system is no longer accessible for reporting detailed historical data.²¹³

²¹¹Ss. 86(1)(d), 88 and 93.

²¹²Final Submission of the Employers, ¶ 98

²¹³E.g., Rick Wentzell Affidavit, December 1, 2014

133

[418] This restructuring is presenting challenges for both employers and unions, but it

must be accomplished with minimal burden on individual employees. The seniority

integration agreement is a fair approach for all employees and all must have the benefit

of all its provisions. The unions will ensure their members are aware of this aspect of

the restructuring process ahead. It is their responsibility to communicate to their

members what will happen. Similarly, it is the employers’ responsibility to communicate

with their employees. In some instances, unions and employers might issue joint

communications.

[419] Communication to employees explaining the entitlement to additional seniority

credit will prompt some to inform their employer they believe they have an entitlement.

This will assist the employers.

[420] Employees hired as regular employees before or after certain dates will have no

entitlement. Some employees have been credited with this entitlement in the past

under some collective agreements. They will not be eligible. There are parameters the

employers can use to identify the cohort that potentially have an entitlement.

[421] There are employer costs with employer initiated restructuring. This will be one

of them.

[422] I have determined the agreement signed by the unions will be the determination

of seniority integration under the Health Authorities Act with date changes in paragraphs

10 and 11. These timeline changes account for the Minister’s extension for making this

decision from January 1^stto 19^th.

[423] I order that the determination of integration of seniority of unionized employees in

each bargaining unit is in accordance with the terms in Schedule 1.

9.

ALL COLLECTIVE AGREEMENTS REMAIN IN FORCE

[424] Reassigning groups of employees among bargaining units, extinguishing the

Public Health and Addiction Services units, reducing the number of bargaining units and

having changes in bargaining agents requires a decision on how existing collective

agreements will apply after April 1, 2015 until new collective agreements based on the

restructured labour relations landscape are negotiated.

134

[425] The Health Authorities Act requires these determinations:

whether, in respect of each bargaining unit,

(i) only a collective agreement to which the bargaining agent, as determined

under clause (b), is a party is to remain in force and apply to all unionized

employees within the bargaining unit, or

(ii) all of the collective agreements pertaining to the unionized employees within

the bargaining unit are to remain in force;²¹⁴

[426] The choice is one or all for each bargaining unit. If the choice is all, then the

Mediator-Arbitrator can segment application of agreements within a unit, modify or

restrict the operation of provisions and interpret provisions of collective agreements.

(2) Where the order provides that all of the collective agreements pertaining to

the unionized employees within a particular bargaining unit are to remain in force,

the order may

(a) specify which unionized employees in the bargaining unit are to be covered

by each collective agreement;

(b) modify or restrict the operation or effect of any provision of any of the

collective agreements and define the rights with respect to the collective

agreement of any unionized employees affected by the determination of the

matters referred to in subsection 86(1) or Section 88; and

(c) interpret any provision of any of the collective agreements.²¹⁵

[427] Discussions on a protocol to address this transitional period in the context of

disputes over the precise composition of each of the eight bargaining units and the

identity of bargaining agents continued among the unions and between them and the

employers throughout and after the hearing.

[428] One of the many complicating factors is that when more than one current

collective agreement applies to positions in the same classification and all classification

positions are included in the same bargaining unit there will continue to be more than

one current or “original collective agreement” for the classification applicable to different

positions. If an employee moves from one position to another within a bargaining unit

before a new collective agreement is achieved is there to be a change in the “original

collective agreement” that applies to that employee? If the change in positions is from

one bargaining unit to another and more than one “original collective agreement” is in

place for classification positions in the new bargaining unit, which agreement will apply

to the employee newly arriving in the unit?

²¹⁴s. 86(1)(d)

²¹⁵s. 94(2)

135

[429] It is not possible to anticipate and make provision for all circumstances that will

emerge. The extent of workplace complication is lessened by the fact current collective

agreements are rooted in geographic areas and facilities so that movement within a

facility or community outside the Halifax Regional Municipality area will likely present

fewer conundrums for resolution. This highlights the reality that the identified problems

that have driven this labour relations restructuring approach are problems in the Halifax

Regional Municipality, not communities in rural Nova Scotia.

[430] Another challenge is envisioning and anticipating a landscape that has not been

determined and for which each party has a different plan.

[431]

After many iterations and building on the agreement on integration of seniority,

the framework of a protocol gained general acceptance. The approach is that at April 1,

2015 current employees will continue to have the benefit and limitations of their current

seniority pools and their current collective agreements under composite transitional

collective agreements for the newly configured bargaining units until new agreements

for the bargaining units are concluded.

[432] As the employer describe: “While employees in a hospital might change

bargaining units, the employees would stay under the same collective agreements, with

the same seniority pool.” And further: “In other words, no employee will have more than

1 collective agreement apply, even though there will be multiple collective agreements

216

in a bargaining unit.”

[433] This approach is consistent with the promise employees will not have

employment benefits swept away by district health authority consolidation. It recognizes

there will be changes, but they will be the result of future collective bargaining under

restructured collective bargaining relationships.

[434] During the transition period, which will likely vary among the bargaining units,

explaining and administering the transitional collective agreement will be challenging for

both union representatives and local management.

²¹⁶Final Submissions of the Employers, ¶ 97.a and 97.b

136

[435] The challenge will vary according to the extent there are common provisions

among the current or “original” agreements forming one of the “composite” transitional

agreements. There will be fewer current agreement components of the composite

transitional agreements in the Clerical unit than the Nursing unit.

[436] It is envisioned newly negotiated collective agreements replacing transitional

collective agreements will not be composite agreements with segmented application

among groups of employees in a bargaining unit. Newly negotiated agreements will

likely be an integrated amalgam of provisions from current collective agreements, but

they will not be composite agreements.

[437] There was discussion and references to the interaction of this approach and

section 104 of the Health Authorities Act in collective bargaining for collective

agreements to replace the transitional collective agreement.

For the purpose of concluding a new collective agreement in respect of a

bargaining unit, where an order issued under subsection 87(1) or Section 93

provides that, in respect of that bargaining unit, all of the collective agreements

pertaining to the unionized employees within the bargaining unit are to remain in

force, the collective agreement to which the bargaining agent that represents the

bargaining unit is a party is deemed to be the expiring collective agreement.

[438] The practical effect of this provision and its interaction with the freeze on

collective bargaining imposed by sections 98 and 102 of the Health Authorities Act as it

might affect the time at which collective bargaining can commence have not been

explored.²¹⁷Sections 98 and 102 state:

98 Before April 1, 2015, neither a district health authority nor a union may

(a) give notice under Section 33 or 34 of the Trade Union Act requiring the

other to commence collective bargaining;

(b) commence or continue collective bargaining under Section 35 of that

Act; or

(c) notwithstanding Sections 5 to 7 of the Essential Health and Community

Services Act, commence or continue negotiations for an essential health

or community services agreement.

102 (1) Any lockout or strike between a district health authority and a union

that is taking place at the time this Section comes into force must

cease until April 1, 2015.

(2) Where, on the coming into force of this Section, a conciliation officer

has filed a report pursuant to subsection 38(1) of the Trade Union Act

²¹⁷Trade Union Act, s. 34

137

and the 14-day period provided for in subsection 47(1) of the Trade

Union Act has begun, no further time of that period elapses until April

1, 2015.

(3) Where, before April 1, 2015, a conciliation officer files a report

pursuant to subsection 38(1) of the Trade Union Act, the 14-day period

provided for in subsection 47(1) of the Trade Union Act does not begin

until April 1, 2015.

[439] There is no real world foundation for interpreting section 104 until the bargaining

agent for each bargaining unit is determined. For this reason, the protocol ordered in

Schedule 2 contains no reference to section 104.

[440] Some protocol provisions were not agreed by all. Schedule 2 contains the

protocol I order. It contains my decisions on differences and is an abridged text of the

final iteration submitted by the unions and employer. A proposed provision relating only

to the Nursing unit is a matter the bargaining agent and employers can address in

anticipation of or after April 1, 2015.

[441] The combination of this protocol and the agreement on seniority integration are

responsive to the concerns raised in August about employee mobility within the single

provincial health authority employer.

[442] The protocol includes a procedure to resolve disputes of both a general nature

and for individual employees. If this protocol overlooks a matter or the text is unclear,

any proposed amendments can be an agenda item for the continuation of this

arbitration.

10.

BARGAINING AGENT CERTIFICATION

[443] Majoritarianism is a fundamental principle of western liberal democracies. A

numerical majority in a group has the power to make decisions that bind all members of

the group.

[444] Because group minorities accept decisions by a numerical majority made within

accepted constraints or limitations, such as not being able to bind a future majority or

exclude a minority, the democratic majoritarian principle is our most important means of

peacefully resolving conflicts.

[445] The democratic majoritarian principle permeates our formal institutions from

Parliament and the Supreme Court of Canada to the rules of order commonly used in

138

group decision making. It is the decision making principle at every level of elected

government. It is the principle used in regular, annual, impromptu and extraordinary

meetings of organized groups.

[446] It is the decision making method that permeates our society and is taught to

children at an early age as the dominant accepted method of making group decisions.

Informally, gatherings refer to it when deciding such mundane matters as whether to go

here or there for a recreation event. Often, in some circumstances, perhaps at a family

table, at a sports team practice or on the shop floor, it is said: “This is not a democracy.

The decision has been made.” This illustrates that exceptions, not the norm, only

prevail in some circumstances where there are power and role imbalances.

[447] Whether by simple majority of those participating or the more onerous majority of

those eligible to participate or a percentage higher than a simple majority, it is by the

majoritarian principle that decisions are made to select leaders, choose among options,

engage service providers, adopt plans of action and too many other types of decisions

to enumerate.

[448] It is as a consequence of a majority choice that the Liberal Party as provincial

government has the legitimacy to decide on acute health care restructuring in the

manner it has and that the House of Assembly passed the Health Authorities Act. It is

because of the majoritarian principle that the Lieutenant Governor as vice regal

representative gave Royal assent.

[449] Majoritarianism is a fundamental principle and value of our collective bargaining

system embedded in collective bargaining legislation. As the employers describe it:

“Indeed, this concept of majoritarian exclusivity is pervasive throughout labour

legislation across Canada.”²¹⁸

[450] The word “majority” is used twenty times in different contexts for employees and

employers in the Trade Union Act. One context is that thorough majoritarian choice

trade unions gain and lose status as exclusive bargaining agent for a group of

employees with rights and responsibilities that accompany the status. Individual

²¹⁸Submissions of the Employers, December 4, 2014, ¶10

139

employees in the group lose the right to make individual contracts with their employer

and access to courts and others means to address their individual employment issues.

[451] The principle and value of majoritarian employee decision making in choosing to

certify unions as exclusive bargaining agents for groups of employees is so embedded

in Canadian labour relations that it did not need any more elaboration in a major

national review in 1968 than the following:

The principles which underlie the Canadian industrial relations system are

reflected in Canada’s heritage of fundamental western values, in the liberal

democratic political system adopted in this country and in the modified capitalist

or mixed enterprise economy that has developed.²¹⁹

[452] There have been innumerable political and legal disputes over the method of

determining union majority support; the eligibility for inclusion and the composition of the

constituency or appropriate grouping of bargaining unit employees among whom a

majority will be determined; whether an employee or employees in a classification or job

position will or will not be included in the group; weighting the expressed wishes of

employees opposing certification; the date at which the wishes of a majority is to be

determined; and related constituency boundary and expression of employee wishes

issues. This is daily grist for labour relations board decision making. On occasion the

disputes have reached the Supreme Court of Canada.²²⁰

[453] Since the 1689 Bill of Rights limiting the power of the Crown and establishing the

rights of Parliament and holding regular elections, the evolution of democracy has been

founded on the majoritarian principle which itself evolved to be more inclusive. Like

certain traditions and constitutional conventions, it is so embedded there is seldom need

to reflect on how basic it is to the society we are.

[454] Democracy and enhancement of democracy are values underlying and inherent

in our constitution. The right to engage in collective bargaining is supported by the

value of enhancing democracy. Industrial democracy is one of the core objectives of

the Trade Union Act and collective bargaining legislation across Canada modeled on

²¹⁹H.D. Woods and others, Canadian Industrial Relations: The Report of the Task Force on Labour

Relations (December 1968), ¶ 22

²²⁰E,g., Canada (Labour Relations Board) v. Transair Ltd. [1977] 1 S.C.R. 722

140

the American Wagner Act. This is employees having the sense at work of “worth,

freedom and participation that democratic government promises them as citizens.”²²¹

[455] While statutory recognition of the principles of majority representation may not be

constitutionally required in all situations and for all industries,²²²I have concluded that

such a marked departure in the Health Authorities Act from this fundamental principle of

the Trade Union Act cannot be implied. This is not a conclusion based on constitutional

law but from a purposeful and contextual interpretation of the Health Authorities Act.

[456] I make this conclusion because all but a few provisions of the Trade Union Act

continue to apply to these collective bargaining relationships established under the

Trade Union Act and which can be changed under the Trade Union Act both

immediately after April 1, 2015²²³and fundamentally when the Governor in Council

repeals section 83(2).²²⁴

[457] The collective bargaining to commence after April 1, 2015 will be regulated under

the Trade Union Act, which presumes the union bargaining agent engaging in collective

bargaining has majority support for the proposals its advances in collective bargaining

and majority support as the employees’ agent able to make agreements and

commitments binding on individual employees, classifications of employees, employees

working at specific hospitals and in specific programs and all the employees in the unit

across the province.

[458]

The Health Authorities Act transitional provisions relating to restructuring labour

relations because of the anticipated employer successorship are simply a parallel

process to successorship provisions of the Trade Union Act. While this mediation-

arbitration process is a dedicated expedited process fashioned for the unique

circumstances of this restructuring, it is a brief interlude on a branch line parallel to the

main line on which the unions and employer have travelled for decades under the Trade

Union Act with the Labour Board, which is still engaged in other aspects of their

²²¹Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia [2007] 2

S.C.R. 391 ¶ 57 quoting K.E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of

Modern Legal Consciousness, 1937-1941 (1978), 62 Minn. L. Rev. 265, at pp. 281-84

²²²(Attorney General) v. Fraser, [2011] 2 S.C.R. 3, ¶ 47

²²³s. 103

²²⁴s. 155(2)

141

relationships and can be reengaged in bargaining unit composition issues as early as

April 1, 2015.

[459]

The principle of “majoritarianism/exclusivity” is a fundamental principle of the

Trade Union Act and, I conclude, of the Health Authorities Act.

Majoritarianism/exclusivity means that the association supported by the majority

of employees in the bargaining unit was the exclusive right to bargain on behalf

of all employees in the unit. In a Wagner labour regime, an association that

represents a minority of the employees, as much as 49 per cent of them, has no

right to collectively bargain with the employer. Once a bargaining agent is

certified by the relevant labour board, no other association of employees has any

officially recognized status. An uncertified association has no right to bargain on

behalf of workers, or so much as meet with employers to discuss the views of the

workers they claim to represent. Even individual employees cannot negotiate

their own terms and conditions of employment but must deal with the employer

through the certified union.

In light of the exclusive status accorded to the certified bargaining agent, labour

legislation usually imposes on the agent a duty of fair representation. The agent

must represent all employees in the unit in a manner that is not arbitrary,

discriminatory or in bad faith.

It is an important feature of the Wagner model that the employees' bargaining

representative be structurally autonomous and independent of the employer.²²⁵

[460] This is a fundamental principle that logically cannot be suspended for one step in

continuing coverage under the Trade Union Act and then reengaged under the Trade

Union Act as if it was always in place without suspension.

[461] How can a union be an exclusive bargaining agent or be held to a duty of fair

representation if it does not have majority support among the employees for whom it

has exclusive bargaining authority? Why can an employee covered by a transitional

collective agreement be denied recourse to the court if the union certified as the

employee’s exclusive bargaining agent had as members a minority of membership

support at the time the union was certified in the process to replace a union that had

majority support? How can a transitional collective agreement be valid and enforceable

225

Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363, ¶ 26 – 28;

Leave to appeal to S.C.C. granted February 2014. This quotation and citation is not a reference to the

Ont. C.A. ultimate judgment but simply a recent source for a succinct description of

“majoritarianism/exclusivity.” On January 12, 2015, I was informed the Supreme Court of Canada

intended to release its judgment on January 16, 2015, the last business day before this decision was to

be released, I decided no further submissions were invited, permitted or to be accepted. I was informed

the S.C.C. judgment was released as scheduled and asked to seek an extension of time from the

Minister. I declined.

142

if the union party does not represent a majority of the employees the agreement

covers?

[462] The interconnected principles and foundation of our collective bargaining

legislation, history and values cannot be compartmentalized. The whole cannot function

and will become dysfunctional if the foundation is not built on basic principles and

values.

[463] There is no other choice than the conclusion this fundamental principle of Nova

Scotia’s collective bargaining legislation, of which the transitional labour relations

restructuring provisions of the Health Authorities Act is a situational interlude, is inherent

in and applicable to the interpretation and administration of those transitional provisions.

A.

Nursing Bargaining Units

[464] It is against this background and context that the NSNU reflexively claims the

right to be certified as the bargaining agent for the Nursing unit. The term “bargaining

agent” is not defined in the Health Authorities Act. Words and expressions not defined

“have the same meaning as in Part I of the Trade Union Act,”²²⁶which defines the term:

“bargaining agent” means a trade union that acts on behalf of employees

(i) in collective bargaining,

(ii) as a party to a recognition agreement with their employer, or

(iii) as a party to a collective agreement with their employer;²²⁷

[465] A trade union does not act on behalf of a group of employees in collective

bargaining unless it has been selected by the employees to be their certified or

voluntarily recognized bargaining agent or is a successor union to the one selected.

[466] With voluntary recognition, the Trade Union Act provides a collective agreement

between an employer and voluntarily recognized union is not valid if “the trade union

does not represent a majority of the employees in the unit defined by the agreement.”²²⁸

[467] There are processes by which a union can replace another union as the

bargaining agent for a group of employees if it demonstrates majority support among

the employees.²²⁹

²²⁶s. 2(20

²²⁷Trade Union Act, s. 2(1)(a)

²²⁸Trade Union Act, s. 30(3)(c)

143

[468] The NSNU submits the provisions of the Health Authorities Act relating to the

Nursing unit are consistent with the Trade Union Act and:

Based upon the principles of majoritarianism, and the community of interest

amongst the nurses, the bargaining agent for the nurse bargaining unit should be

the Nova Scotia Nurses' Union. These outcomes would meet the Bill 1 [Health

Authorities Act] criterion of stable and harmonious labour relations and the

provision of effective and efficient health care.²³⁰

[469] By the NSNU’s calculation it represents and has as members 5,738 of 10,049

nurses to be included in the Nursing unit. On this calculation (57.1%), it submits: “Most

importantly, the NSNU currently represents the clear majority of the combined group of

LPNs and RNs [in] the proposed nurse bargaining unit.”²³¹Further:

… NSNU has a majority representation of registered nurses in the DHAs and

IWK. Traditionally, Labour boards recognize the bargaining agent with the

majority of unionized employees. Fifth, when one looks exclusively to the

LPNs, no union has a clear majority of the representation of the LPNs. NSNU

represents approximately 25% of all LPNs in in the province. In NSNU’s

submission, in the context of nature of the LPN and RN work and the

apparent community of interest, these factors should weigh more heavily in

favour of the bargaining agent that represents the majority of all employees in

the overall discipline of nursing.²³²

NSNU Does Not Have Required Double Majority

[470] If these calculations were correct, the resulting decision would be a simple,

foregone conclusion.

[471] The NSNU represents a majority of the Registered Nurses (and Nurse

Practitioners) in the Nursing unit among the employees in a consolidated provincial

health authority and at IWK Health Centre. As reported in a table above, the NSNU

represents 100% of the Registered Nurses employed by IWK Health Centre and

56.43% employed by district health authorities consolidated as the provincial health

authority. This is 62.26% for all the Registered Nurses in both health authorities.

[472] Because the NSNU represents a majority at November 25, 2014 of the combined

987 Registered and 87 Licensed Practical Nurses in the future Nursing unit at IWK

Health Centre, it could be prospectively certified for that unit effective April 1, 2015.

²²⁹Trade Union Act, ss. 23 and 25

²³⁰Final Argument Nova Scotia Nurses’ Union, ¶ 9

²³¹Final Argument Nova Scotia Nurses’ Union, ¶ 20

²³²Final Argument Nova Scotia Nurses’ Union, ¶ 253

144

[473] However, limitations in the Health Authorities Act require an eligible union to

have a double majority because in order for a union to be certified for one health

authority Nursing unit it must also be certified for the Nursing units of both health

authorities. There is no provision for combining the numbers in both units to achieve an

overall majority and be certified for both.

[474] The 57.1% majority based on the NSNU numbers is an aggregate or overall

percentage calculated for both units combined. It does not appear to include

Registered and Licensed Practical Nurses moved to the Nursing unit of the provincial

health authority from the disbanded Public Health and Addiction Services units.

[475] As calculated in the following table, the NSNU does not represent or have as

members a majority of unionized employees in the Nursing units employed by the

district health authorities at November 25, 2014. It has 48.9%. The NSGEU has

39.91%.

[476] Nothing less than 50% plus one is a numeric majority in any circumstance. A

plurality does not count. Unions only become certified as exclusive bargaining agent for

all employees in a group of employees by demonstrating support based on an absolute

majority.

[477] It is possible the NSNU represents a majority if there is a mistake in my

calculations or there are enough Registered Nurses currently in generic positions in the

Nurses units. What those positions are and the number of Registered Nurses

occupying the positions are not known and have not been addressed. In the data

provided, the employers simply presumed all positions currently in the Nurses unit

require a nursing certificate. The NSNU did not identify generic classifications and

positions. It did not intend for them to be excluded from the Nursing unit. The NSGEU

does not know which classifications in the NSNU Nurses units will be reassigned to the

two Nursing units at April 1, 2015.

[478] Perhaps there is another date at which it is appropriate to determine majority and

the NSNU can demonstrate majority membership at that date.

145

[479] Without including Licensed Practical Nurses, the NSNU represented a majority of

both Nursing units in August when it was willing to have Licensed Practical Nurses

included in Health Care units and the government was also willing if all other matters

were resolved. As discussed, I do not have the discretion to include the Licensed

Practical Nurses in the Health Care unit to assure the NSNU a double majority in the

Nursing units.

146

Table 14: Distribution of RN and LPN Positions in Two Nursing Units

IWK

Union Union

Employer

NSNU

SSDHA SWNDHA AVDHA CEHHA CHA PCHA GASHA CBDHA CDHA Totals

Totals

%

RN

LPN

RN

297

295

428

252

91

208

91

249

108

300

96

1,081

497 3,607

186 572

2,548 2,548

987

91.9%

4,179 48.90%

NSGEU

LPN

OR

PH&AS RN

LPN

PH&AS RN

523

19

523

19 3,411 39.91%

264

87

8.1%

5

11

150

8

13

163

14

5

162

19

2

19

1

25

58

26

116

57

476

8

CUPE

484

472

5.66%

5.52%

Unifor

Totals

LPN

OR

470

2

470

2

471

479

609

364

319

382

480

1,669 3,773 8,546

1,074

147

No Authority to Conduct Representation Vote

[480] The NSGEU submits I can and should order that the Labour Board conduct a

representation vote among all Registered and Licensed Practical Nurses.

The Interpretation Act, RSNS 1989, c 235, applies to the HAA. Section 19 of the

Interpretation Act provides for implied powers for public officers, which include

administrative decision-makers such as the Arbitrator under the HAA. Where the

Arbitrator has the power to do or enforce the doing of any act, then all necessary

powers to enable this are implied into the HAA (s. 19(b)). Where the Arbitrator

has express authorization in the HAA to do an act, and the expressly authorized

act is dependent on doing another act, then the Arbitrator has the power to do

the other act (s. 19(c)). By virtue of the Interpretation Act, the Arbitrator has the

authority and power to do whatever is necessary to achieve the goals of the

Arbitrator's express mandate. NSGEU submits that the implied power includes

the power to consider the wishes of employees and to require representation or

run-off votes.²³³

*********

Consideration of the wishes of employees can also be arrived at pursuant to

administrative law principles. The Arbitrator has the authority, under s.91(2) to

determine procedures. Common law administrative law principles requires those

procedures to be fair. The common law principle of audi alteram partem, or the

right to be heard, is often implied where legislation does not specify all

procedures to be used by an administrative decision-maker. Employees are

directly affected by the choice of their bargaining agent. As such, employees

have a right to be heard. Regardless of whether it is thought of as reading in a

Charter remedy, or implying employees' common law right to be heard in

decisions that affect them directly, NSGEU submits employees have the right to

choose their bargaining agent. A vote process gives employees the opportunity

to be heard and is required for the procedures pursuant to the HAA Transitional

provisions to be fair.²³⁴

*********

As set out later in this argument, these votes could be conducted by the Labour

Board or such other person or agency as the Arbitrator sees fit. As stated above,

the Arbitrator's jurisdiction extends to any act necessary to do the express duties

under the Act (ie., the selection of bargaining agent).

If the Transitional provisions are applied in a manner that requires changes to

union membership, the provisions must be applied in a manner that considers

employees' wishes through a vote process.²³⁵

[481] The NSGEU submits a public opinion poll it conducted concluded a majority of

Nova Scotians strongly supported this right voting for acute health care employees.²³⁶

“Further, there should be a vote to determine which union will represent the nursing

²³³Final Submission on Behalf of NSGEU, ¶ 38

²³⁴Final Submission on Behalf of NSGEU, ¶ 100

²³⁵Final Submission on Behalf of NSGEU, ¶ 111 - 112

²³⁶Robin MacLean Affidavit, November 28, 2014, Exhibit “D”

148

bargaining unit as should be the case with the other three bargaining units. It is

submitted democratic and Charter principles demand there be no presumptions.”²³⁷

[482] The NSGEU submits majority support for a bargaining agent is essential to meet

the long range goals as directed in section 90(2):

In determining the bargaining agent that is to represent each bargaining unit, the

mediator-arbitrator shall consider whether the selection of the proposed

bargaining agent will

(a)

be conducive to achieving stable and harmonious labour relations

between the health authorities and unionized employees; and

(b)

promote the effective and efficient provision of health care to patients at

the health authorities’ facilities.

[483] For this reason, it submits there must impliedly be authority to order a vote

funded by the government.

L.

RE: Jurisdiction to order a Vote

The issue of the Arbitrator's jurisdiction to order a vote was raised at the hearing.

NSGEU acknowledges The Trade Union Act and the HAA do not appear to

contain general authority provisions as are found in some enabling statutes. It is

noted, however, that the preamble of The Trade Union Act does declare it is an

Act respecting the right of employees to organize and providing for mediation....

Further, although the provisions of The Trade Union Act concerning successor

are specifically exempted from proceedings under the HAA, it is submitted the

HAA provides a parallel system and the same powers should be applied to an

Arbitrator acting under the HAA. Section 31 of The Trade Union Act of course

specifically provides for representation votes to be taken. By analogy it is

suggested the same method of determining which union should represent

workers applies in the matter at hand. One notes further The Trade Union Act

Regulations (Regulation 6) further directs that the Board has authority concerning

directions, etcetera concerning votes, not only pursuant to section 31 and other

enumerated sections but "for any other reason". Further, by analogy the

Arbitrator under the HAA is clothed with authority to conduct the vote.

Further, however, the NSGEU submits the general empowering section is not

necessary. As set out in the NSGEU's initial written argument concerning

Charter and other issues - 8 December 2014, section 19 of The Interpretation Act

(which will apply to both The Trade Union Act and the HAA) provides that a

public officer (which the Mediator-Arbitrator is) is given all necessary powers to

do whatever is necessary to achieve the goal of the Mediator-Arbitrator's

mandate (please see s. 19(b), (c) and (e)).

Above and beyond powers provided by the statutes above-mentioned, it is further

submitted the Arbitrator has the power to conduct a representative vote by virtue of

"the doctrine of jurisdiction by necessary implication". This doctrine was reflected

upon by the Supreme Court in ATCO Gas and Pipelines Ltd. v. Alberta (Energy

and Utilities Board), 2006 SCC 4 where the Court was reflecting upon the

²³⁷Final Submission on Behalf of NSGEU, ¶ 33

149

jurisdiction of the Alberta Energy and Utilities Board. At paragraph 51 it was

stated:

The mandate of this Court is to determine and apply the intention of

the legislature (Bell ExpressVu, at para. 62) without crossing the line

between judicial interpretation and legislative drafting (see R. v.

McIntosh, f199511 S.C.R. 686, at para. 26; Bristol-Myers Squibb Co.,

at para. 174). That being said, this rule allows for the application of

the "doctrine of jurisdiction by necessary implication"; the powers

conferred by an enabling statute are construed to include not only

those expressly granted but also, by implication, all powers which are

practically necessary for the accomplishment of the object intended to

be secured by the statutory regime created by the legislature (see

Brown, at p. 2-16.2; Bell Canada, at p. 1756). Canadian courts have

in the past applied the doctrine to ensure that administrative bodies

have the necessary jurisdiction to accomplish their statutory mandate:

When legislation attempts to create a comprehensive regulatory

framework, the tribunal must have the powers which by practical

necessity and necessary implication flow from the regulatory authority

explicitly conferred upon it.

Please see also R. v. Cunningham, 2010 SCC 10 and Nishnawbe Aski Nation v.

Eden, 2011 ONCA 187. It should be noted in the Nishnawbe matter the question

was whether a coroner had the implied authority to question members of the jury

role to determine firstly if they were representative and secondly impartial. It was

determined although there was not a specific grant of this authority it was present

by necessary implication (please see paragraphs 32 and 33 re: the doctrine).

Here the NSGEU argues in fulfilling the Arbitrator's mandate pursuant to the

provisions of the HAA, including section 90, one factor that must be considered is

the wishes of the employees. Again it is submitted the way to determine

employees' wishes is of course with a vote. That being so, by necessary

implication the Arbitrator not only has the jurisdiction and authority to order a vote

but also has the jurisdiction to see that the vote is carried out in a proper fashion.

Although it appears the Arbitrator could see fit to conduct an election in any way

that was proper, the most efficient manner would likely be to enlist the assistance

of the Labour Board and its officers to conduct the vote in the normal fashion and

report the results of same back to the Arbitrator who then could make the

appropriate determinations.

Ongoing jurisdiction to direct and supervise the vote and see to the

implementation of its results can be found in the above-noted legislation, the

doctrine of implied jurisdiction as well as the implementation provisions of the

HAA.

M.

Funding the vote

The question of funding a representation vote was raised at the hearing. Given

the structure of the Act it is highly unlikely there is funding built into the budget of

the Arbitrator. It is submitted however that is not the question. Budgetary

allocation cannot determine whether or not a government is obliged to make

good a breach of democratic and Charter rights and whether an Arbitrator

whether acting pursuant to the Charter or otherwise is able to fashion a remedy

responsive to the breach and to ensure democratic and Charter rights are

respected. In any event, however, it appears the government has made

150

budgetary provision which would cover expenses associated with a

representational vote without further budgetary adjustments.

Filed with the Arbitrator is a portion of the province's 2014-2015 budget

estimates.

There is provision made for contract negotiations, workforce

adjustment and government restructuring.

The estimate 2014-2015 is

$227,251,000. The cost of a representation vote would be a very small

percentage of this total estimated expenditure and would cause no burden to the

province.

One notes also in the two previous reorganizations representative votes were

funded by the province as part of the process.²³⁸

[484] No other union advocates representation votes. Unifor submits for the unit of

employees it represents: “A “run-off vote”, as proposed by NSGEU, will result in no less

disruption to the lives of the employees than the Government’s plan.”²³⁹

[485] The Attorney General of Nova Scotia says the absence in the legislation of power

to order a representation vote is “consistent with what the Minister of Health learned

from stakeholders in his “listening and learning” tour of the province; “A strong desire to

avoid run-off votes.”²⁴⁰

[486] Despite the ingenuity of the NSGEU submissions, I have concluded it would be a

contortionist stretch to conclude by necessary implication from the Interpretation Act,

common law, Canadian Charter of Rights and Freedoms or other source that I have

authority under this legislative scheme to order and supervise a representation vote or

delegate supervision to another person. This was the conclusion of the Saskatchewan

Court of Appeal in 1997 on review of regulations reorganizing health care in that

province. That conclusion applies equally to the Health Authorities Act: “We are of the

opinion that the Legislature, had it intended something of the sort, would have expressly

provided for it and that such a requirement cannot properly be implied.”²⁴¹

[487] No one addressed the easy conceived circumstance that neither the NSNU nor

NSGEU might be selected by both groups of employees so neither would achieve the

double majority required to be certified for both units. What then?

²³⁸Final Submission on Behalf of NSGEU, ¶ 123 - 131

²³⁹Submissions of Unifor Locals 4600, 4603 and 4606, ¶ 96

²⁴⁰Submissions of the Attorney General of Nova Scotia, January 5, 2015, ¶5

²⁴¹Saskatchewan Government Employees’ Union (SGEU) v. Saskatchewan 1997 SJ No. 277 (CA)

151

[488] It is not my role to comment on the legislative choice not to conduct

representation votes to determine the wishes of employees. It is sufficient for me to

simply state, as I have concluded, I do not have the authority in this legislative scheme

to order a representation vote.

What eligible union is to be certified? (reserved for continuation)

[489] Consistent with the principles of section 53 of the Trade Union Act and

independent employee bargaining agents free from employer interference or favour, the

employers made no submissions on which union should be certified as bargaining agent

for any unit and made no submissions with respect to section 90(2). However, like

others, it presumed the scheme of the legislation with its combination of limitations and

eligibility requirements for certification as a bargaining agent, and perhaps the NSNU’s

membership numbers, would direct certification of the NSNU for both Nursing units.

[490] Both the NSNU and NSGEU are eligible to be certified for the Nursing units: “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.”²⁴²“Type” is one of the four units.²⁴³

It is not so narrow as to mean a unit that is composed of both Registered and Licensed

Practical Nurses, which the NSGEU does not represent. Such a narrow approach has

absurd results when applied to the other three units.

[491] One dilemma is that the NSGEU is eligible to represent the employees in all

other units but the NSNU is not eligible to represent any unit other than the Nursing unit.

This might appear to direct that the NSNU is to be certified for both Nursing units. It

might be the legislators knew or assumed a union constituted exclusively for nurses

would not want to represent employees in other occupations. It might be the legislators

or planners assumed the NSNU represented a majority of Registered and Licensed

Practical Nurses in both Nursing units and chose to include both in the same unit. If so,

that was a mistaken or unverified factual assumption, perhaps driven by policy goals.

²⁴²s. 89(1)(d)

²⁴³s. 2(1)(zj)

152

[492]

The fundamental democratic value that no union is ever certified to be an

exclusive bargaining agent for a group of employees if it cannot demonstrate majority

support among the group of employees must prevail. In a democracy, legislative

assemblies do not simply shuffle constituency boundaries or reallocate votes among

constituencies to meet some desired goal and defeat the majoritarian principle. What

cannot be done directly cannot be done indirectly by fashioning limitations and eligibility

rules to dictate an outcome that supersedes the wishes of a majority of employees.

[493] There are instances when governments have acted or failed to act to disqualify a

union from representing a group of employees. This happened to The Professional

Institute of the Public Service of Canada, which wanted to continue to represent nurses

when they became employees of the Northwest Territories government, which failed to

act so it could continue to represent the nurses.²⁴⁴

[494] In the converse, unions have been certified by legislation, as is the situation for

the NSGEU under the Civil Servants Collective Bargaining Act. These were acts to

formalize relationships with a union that represented a majority of the constituent

employees.

[495] There has not been legislated certification in circumstances where the union did

not have majority membership or other demonstrated majoritarian support among the

group it was certified to represent. 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.

[496] Simply as a practical labour relations matter, no private sector employer would

ever accept having its employees represented by a union that has not demonstrated

majority support among its employees. Why would a public sector employer? Why

would anyone want it for the critical health care system being restructured? All

employers would ask if this was done for nurses could it happen to their employees.

[497] A labour relations reality is that no private or public sector employer wants to

bargain with a union or discuss grievances with a union that does not represent a

244

Professional Institute ofthe Public Service ofCanada v. Northwest Territories(Commissioner),[1990] 2 S.C.R. 367

153

majority of its employees. Employers and unions know having a relationship in which

the union does not have majority employee support is not conducive to an environment

in which the union can make agreements and resolve differences over the objection of

individual grieving employees or groups of employees. It is not an environment

conducive to productive collective bargaining. It is not an environment conducive to

stable and harmonious labour relations. It is an environment conducive to ongoing

disputes, grievance arbitration and failed ratification votes.

[498] This is why, in the absence of egregious employer interference, no labour

relations board may certify a union knowing the union has not demonstrated majority

membership or other support, often through a vote, among the group of employees.

[499] The NSNU believed it had majority support when it submitted it should be

certified. And, perhaps it will after the calculations I have made are put under

microscopic scrutiny and all generic positions are identified and the employees in those

positions are excluded from the count.

[500] However, for now, I have concluded it cannot be implied the legislative scheme

of the Health Authorities Act is fundamentally undemocratic and imposes on a group of

employees a bargaining agent, with all its acquired rights and the loss of individual

employee rights, which has not established it has majority support among the group of

employees.

[501] Making a leap to imply otherwise would mean Unifor with only 9.35% of all district

health authorities’ acute care employees as members and a smaller percentage of

Health Care unit employees could be certified to represent both the Health Care unit

employees of the provincial health authority and the Health Care unit employees of IWK

Health Centre where its membership is 0%. Or be certified to represent employees in

the provincial health authority Support unit when it represents only 25% or so of the

employees. Such an outcome would be completely contrary to the majoritarian principle

underlying the basis for a union’s exclusive bargaining agency on behalf of employees

in their workplaces.

[502] This highlights a complicating feature of labour relations restructuring under the

Health Authorities Act. To align the IWK Health Centre with the consolidated provincial

154

health authority the same union must be certified to represent the employees in the

same type of unit for each employer. This does reduce the instances of collective

bargaining and creates a structure that facilitates the two employers’ ability through

mandatory multi-employer collective bargaining to negotiate with one union common

terms and conditions of employment for similar groups of employees. It facilitates but

does not guarantee this outcome because the employees in the unit of one employer

might not be willing by majority vote to ratify a tentative agreement that a majority of

employees of the other employer will ratify.

[503] A consequence of this unique feature of the Health Authorities Act transitional

provisions aligning the IWK Health Centre with the provincial health authority is that

because they are two separate employers the union must demonstrate majority support

among two groups of employees or two employers. An eligible union seeking to be

certified to represent the employees of one of the four bargaining unit types must also

represent the employees in the same type of unit of the other health authority employer.

[504] This limitation creates an additional hurdle eligible unions must overcome by

establishing double majority support among two groups of employees of two employers

in order to be certified to represent either or both groups. It serves longer term

restructuring goals for acute health care in the government’s plans as reported by the

Department of Health and Wellness and its Transition and Design Team, but creates

complications for eligible unions.

[505] The NSNU is an eligible union with demonstrated majority support among nurses

in the future Nursing unit of one employer. It has not demonstrated the requisite double

majority support.

[506] What are the options for a solution? Throughout this process individual parties

have reconsidered and, in some cases, made significant modifications to their approach

in light of more information and further reflection. The employers and unions could

consent to mediated negotiations under section 92 to find a solution.

(1) The mediator-arbitrator may conduct mediated negotiations between the

district health authorities and unions in respect of the matters to be

determined under Section 88 at any stage in the arbitration proceeding with

the consent of the district health authorities and unions.

155

(2) Where the mediated negotiations are not successful, the mediator-arbitrator

retains the power to determine the matters to be determined under Section

88 by arbitration.

[507] Beyond the employers and unions, the Minister could find some way of

conducting a representation vote among nurses to choose representation by the NSNU

or NSGEU. I accordance with common labour relations board practice, because of their

small minority percentage of membership the CUPE and Unifor local unions would not

be on the ballots. With only the NSNU and NSGEU on the ballots there would be no

risk of a run-off vote in each. This would be consistent with the promise of the Minister

of Labour and Advanced Education that: "The government will respect the desires of the

health care union members in which union they want to belong.”²⁴⁵However, there is a

risk one union will receive majority support among employees in the unit of one

employer and the other receives majority support among employees of the other

employer. This is a risk that accompanies the unique double majority limitation.

[508] Or the Minister could find some way to have all Licensed Practical Nurses of both

employers vote whether they wish to be included in the Nursing or Health Care unit. If a

majority votes for the Health Care unit, the NSNU will have the required double majority

of Registered Nurses in the Nursing units. If the Licensed Practical Nurses vote to be

included in the Nursing unit, there would have to a second vote to select a bargaining

agent with the risk the outcome would differ between the two units.

[509] The House of Assembly could remove the Licensed Practical Nurses from the

Nursing unit and thereby give the NSNU a double majority. Or it could combine the

Nursing units for the provincial health authority and IWK Health Centre into a single or

common employer unit giving the NSNU a majority (53.7%). What that might mean for

the separate governing structure of the IWK Health Centre and the three other units is

unclear. Perhaps there are other options.

[510] Consequently, I reserve jurisdiction on this issue to be addressed in a

continuation of this arbitration.

²⁴⁵Minister of Labour and Advanced Education, Nova Scotia House of Assembly, Hansard Debates and

Proceedings, Assembly 62, Session 1, May 1, 2014, pp. 2639 – 2641 quoted in context above

156

B.

Clerical Bargaining Units

[511] Currently, the nine district health authority employers and the IWK Health Centre

are parties to eleven collective agreements with three unions in six agreements. CUPE

Locals 2525 and 2431 negotiate together with the five district health authorities for one

multi-union and multi-employer agreement. Local differences are contained in

appended memorandums of agreement and letters of understanding. NSGEU, not its

locals, is the party to agreements.

SSDHA SWDHA AVDHA CEHHA CHA PCHA GASH CBDHA CDHA

IWK

NSGEU NSGEU NSGEU CUPE NSGEU NSGEU

(Local

89)

(Local

90)

(Local

91)

CUPE Local 2525

Local

2431

(Local

246)

(Local

23)

[512] This illustrates differences in the internal organization and structure of CUPE and

NSGEU. Locals of CUPE are each trade unions certified by the Labour Board that

negotiate and sign collective agreements. One aspect of the CUPE culture is that while

affiliated local unions collaborate they often vigorously guard their local autonomy.

Locals of the NSGEU, whose origin is with one employer, have a different legal status

and role under the NSGEU constitution and affiliation under the NSGEU constitution is

something entirely different than CUPE’s structure.²⁴⁶

NSGEU Has Required Double Majority

[513] The NSGEU appears to have a double majority in the Clerical units. It has 100%

membership in the IWK Health Centre Clerical unit.

[514] It has majority membership in the future provincial health authority Clerical unit.

The CUPE local unions with members in only five of the district health authorities

collectively do not have as members a majority of the employees in a consolidation of

district health authority Clerical units.

[515] With the reassignment of clerical positions from Public Health and Addictions

Services units to the Clerical unit and the employers’ proposed reassignment of

classification positions from the existing Health Care unit to the Clerical unit in the

²⁴⁶Nova Scotia Government and General Employees Union Constitution and Bylaws, as amended May

2013, Article 1.7 and 6

157

Capital District Health Authority, the NSGEU majority membership percentage will be

higher in the future provincial health authority Clerical unit.

C.

Health Care Bargaining Units

[516] Currently, six unions represent the employees in the ten Health Care bargaining

units employed by the district health authorities and IWK Health Centre.

SSDHA SWDHA AVDHA CEHHA CHA PCHA GASH CBDHA CDHA

IWK

CUPE

Local

1933

CUPE

Local

835

CUPE

Local

4150

CUPE CUPE CUPE CUPE

Unifor NSGEU NSGEU

Local

2525

Local Local

2525 2525

Local

2525

Local

4600

(Local

42)

(Local

22)

There are four collective agreements because the four CUPE local unions collectively

negotiate one multi-union and multi-employer agreement with seven district health

authorities. Unifor Local 4600 negotiates one agreement with the Cape Breton District

Health Authority and the NSGEU negotiates two agreements with the Capital District

Health Authority and IWK Health Centre.

NSGEU Does Not Have Required Double Majority

[517] The NSGEU represents a majority of employees in the IWK Health Centre Health

Care unit with its 100% membership among the employees.

[518] Subject to closer examination to verify, at November 25, 2014 the NSGEU

currently represents as members a majority of employees in the nine combined district

health authority current Health Care units (3,904 of 7,761 = 50.3%).

[519] However, with fewer members in the Capital District Health Authority Health Care

unit after Licensed Practical Nurses are assigned to the Nursing unit and employees in

other classification positions are assigned or potentially assigned to the Clerical and

Support units, it loses its majority.

Amalgamated Successor Union as Bargaining Agent

[520] The unions proposed a multi-union entity as the certified bargaining agent for the

Health Care units. They called it a bargaining association in August. CUPE now refers

to such an entity as simply a multi-union bargaining agent. NSGEU, apprehensive such

an entity will not be accepted as a bargaining agent after the rejection of the bargaining

association proposal, has redirected its attention to advocating for representation votes

158

with enthusiastic reliance on the Canadian Charter of Rights and Freedoms. At the

same time, it submits:

Section 2(1)(zk)(v) defines "union" to include successors or affiliated locals of

any and all of the four named unions. This definition allows the existing four

unions, or any of them, to use existing or create new affiliated or successor

locals, which can be considered separate "unions" as defined in the HAA.²⁴⁷

Employer Submissions

[521] The employers submit the Health Authorities Act does not permit a multi-union

bargaining agent. They begin by taking no position on which union should represent

each of the bargaining units,²⁴⁸but submit the Health Authorities Act recognizes only

four unions. For this conclusion, they rely on the interpretation they attribute “union” by

focusing on the word “or” in the definition of union.

(zk) “union” means

(i) the Canadian Union of Public Employees,

(ii) the Nova Scotia Government Employees Union,

(iii) the Nova Scotia Nurses’ Union,

(iv) Unifor, or

(iv) a successor or affiliated local of a union referred to in subclauses (i) to (iv);²⁴⁹

[522] The employers submit there are only four eligible unions, each of which may

have a successor or affiliated local but there cannot be any combination of unions.

Further, the only eligible unions are those that represented a bargaining unit when the

statute came into force – “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.”²⁵⁰

[523] Although the four CUPE local unions combined for one set of collective

bargaining to negotiate with eight district health authorities, the employers submit there

was no combination union before October 3, 2014 and a combination of unions cannot

be a bargaining agent after April 1, 2015.

²⁴⁷Final Submission on behalf of NSGEU, December 22, 2014, ¶ 93

²⁴⁸Submissions of the Employer, December 4, 2014, ¶ 130

²⁴⁹s. 2(1)(zk)

²⁵⁰s. 89(1)(d)

159

[524] The employers submit a “successor” must have been in existence before the

Health Authorities Act came into force. They submit the word “successor” is included

only as a drafting precaution in case one of the two provincial or two national unions

had a successor unknown to the drafters of the bill. There is no current meaning or

application of this term because “that ship has sailed.”

[525] They further submit if “successor” includes a union that became a successor

after the statute came into force, that successor would not be an eligible bargaining

agent because it could not satisfy the requirement to have represented unionized

employees before the statute came into force when it did not exist. They submit:

In summary, it is likely and logical that the drafters of the legislation were

covering off the possibility of changes to one of the Unions prior to the passage

of the HAA that would create a successor. The creation of an association of

unions would not create a successor. Assuming an association of unions could

be a successor and therefore a “union”, it would not meet the s.89(1)(d)

requirements and could not be appointed as a bargaining agent. There is

nothing requiring every “union” to be a bargaining agent.²⁵¹

Despite this they submit the four listed in subclauses (i) to (iv) are the only unions and

each is to become a bargaining agent for the same type of unit of employees for both

employers.

[526] The employers submit there is an inherent contradiction in calling an

“association” similar to the unions’ August proposal a successor because all of the

existing unions continued to exist. And both a union and its successor cannot exist at

the same time.

In both the TUA and generally, the essential nature of a succession is that an

entity takes over the rights and responsibilities of an earlier entity which

relinquishes them. Once the new entity succeeds it, the old entity has no further

rights or responsibilities over the subject matter of the transfer of power. This is

not what the Unions propose in an association of unions.²⁵²

[527] The employers submit no multi-union representational structure is intended.

Ultimately, statutory interpretation is premised on determining legislative intent.

The evidence shows that the parties, including representatives of government,

discussed an association of unions in the summer, prior to the HAA being

introduced. The idea was rejected, in part due to the concerns expressed by the

employer representatives. Within this context it is not reasonable to suggest the

²⁵¹Final Submissions of the Employers, ¶ 69

²⁵²Final Submissions of the Employers, ¶ 66

160

government intended the HAA to provide for the outcome it had rejected unless

the parties overcame those concerns during mediation. If the legislature had

intended to do so, it had the means and opportunity to do so explicitly and

without the need for mediation, or for that matter, arbitration. The employers ask

that you apply Ockham’s razor to the unions’ complicated, artificial and

unnecessary construction of the HAA.²⁵³

[528] Further, the employers submit if parties overcame those concerns during

mediation then certain oversight and other matters would have to be addressed

“perhaps requiring some form of commitment from the government to put the required

statutory regime in place.”²⁵⁴This is because councils of trade unions in the

construction industry under the Trade Union Act are subject to Labour Board

oversight.²⁵⁵There is no comparable oversight under the Health Authorities Act or in

the unions’ proposed bargaining association, which would have no members and

cannot itself be a “trade union” under the Trade Union Act.

“trade union” or “union” means any organization of employees formed for

purposes that include regulating relations between employers and employees

which has a constitution and rules or by-laws setting forth its objects and

purposes and defining the conditions under which persons may be admitted as

members thereof and continued in membership²⁵⁶

[529] The employers submit there are several practical problems with the bargaining

association proposal the unions made in August in the areas of internal decision

making, imposing sanctions on dissidents and ensuring coherent action and positions.

Most importantly, the goal of provincial integration would be hampered by an

association of unions approach. On paper the bargaining units would be

provincial in scope and aligned with IWK. However, in practice the old

boundaries would still exist. Each Union would have its “turf”, and its members.

Unions and individuals would still see their “turf” as a distinct entity. The

provincial framework may exist, but the culture never would.²⁵⁷

[530] It is the employers’ submission the Health Authorities Act intends to preserve

some turf for each of the four unions so none will disappear as would happen if there

were representation votes. It does not intend or permit new unions to be certified

²⁵³Final Submissions of the Employers, ¶ 70

²⁵⁴Final Submissions of the Employers, ¶ 77

²⁵⁵Trade Union Act, s. 95

²⁵⁶Trade Union Act, s. 2(1)(w)

²⁵⁷Final Submissions of the Employers, ¶ 83

161

Discussion, Analysis and Decision

[531] It is implausible the drafters used the word “successor” simply to guard against

the unknown possibility that provincial NSGEU or NSNU or national Unifor or CUPE had

managed to disappear and have a successor sometime in 2014. This is an argument

based on a desired outcome, not the plain and ordinary meaning or context of the use

of the word “successor.”

[532] The unions that represent unionized employees in a Health Care bargaining unit

of the same type for at least one district health authority are CUPE Locals 835, 1933,

2525 and 4150, not CUPE, and Unifor Local 4600, not Unifor.

[533] Under the employers’ interpretive approach, the “Canadian Union of Public

Employees” and “Unifor” are defined as two of only four unions, but each would be

ineligible to become a bargaining agent after April 1^stbecause each did not represent

employees in a bargaining unit before the Health Authorities Act came into force. This

illogical result is not intended.

[534] “Successor” extends to trade union organizations that come into existence after

the Health Authorities Act came into force. Among other things, this will ensure a

successor union after April 1, 2015 will continue to hold collective bargaining rights

during the indefinite time that section 32 of the Trade Union Act does not apply. Section

32 states:

(1) Where a trade union claims that by reason of a merger or amalgamation or a

transfer of jurisdiction it is a successor of a trade union that at the time of the

merger, amalgamation or transfer of jurisdiction was the bargaining agent of

a unit of employees of an employer and any question arises in respect of its

rights to act as the successor, the Board, in any proceeding before it or on

the application of any person or trade union affected, may by order declare

that the successor has or has not, as the case may be, acquired the rights,

privileges and duties under this Act of its predecessor.

(2) Before issuing an order under subsection (1), the Board may make or cause

to be made any examination of records or other inquiries, and may hold any

hearings or representation votes that it deems necessary and prescribe the

nature of evidence to be furnished to the Board.

(3) Where the Board makes an affirmative declaration under subsection (1), the

successor for the purposes of this Act acquires the rights, privileges and

duties of its predecessor, whether under a collective agreement or

otherwise.

162

[535] The operation and application of this section is suspended by section 83 of the

Health Authorities Act, which states:

(1) Sections 23 to 26, clauses 28(1)(b) to (d) and Sections 29 to 32, 40A and

40B of the Trade Union Act do not apply in respect of labour relations

between a district health authority, its unionized employees and the

bargaining agents for those unionized employees.

(2) Sections 23 to 26, clauses 28(1)(b) to (d) and Sections 29, 31, 32, 40A and

40B of the Trade Union Act do not apply in respect of labour relations

between a health authority, its unionized employees and the bargaining

agents for those unionized employees.

The difference between subsection (1) and (2) is that subsection (1) applies to “district

health authorities” disappearing March 31, 2015 and subsection (2) applies to “health

authorities” coming into existence on April 1, 2015.

[536] Subsection (1) will operate until March 31^st. How long subsection (2) will be in

effect is unknown. It will be repealed when section 105 of the Health Authorities Act is

brought into force by the Governor in Council under section 155(2) of the Health

Authorities Act – “Sections 105 and 106 come into force on such day as the Governor in

Council orders and declares by proclamation.”

[537] The term “successor” in the definition of “union” provides interim continuity

allowing affected unions, such as CUPE local unions, to reorganize by merger,

amalgamation or transfer of jurisdiction. This is a very predictable need at or after April

1, 2015 because of district health authority consolidation and the goal of alignment with

IWK Health Centre.

[538] Union reorganization will diminish local union autonomy, as did the proposed

bargaining association. A limitation on autonomy is sometimes the price of adapting to

new circumstances. The current district health authority employers and their

governance and management after dedicated work to their mission, vision and values

are paying the price of being wound up because their work, behaviour and effectiveness

was not successful. With fewer transfers dollars from the federal government, fewer

executive leaders in a provincial organization based in Halifax will do better in delivering

acute health care services to a population requiring more acute health care.

[539] Union reorganization in some broader based form is a predictable course of

events in anticipation of what will happen with the employer consolidation. It must not

163

be overlooked the Health Authorities Act is addressing an anticipated change in

employers. In the normal course, as in past health care service delivery restructurings,

the labour relations restructuring process happens at the Labour Board after the event

when unions are responding to events that have happened. The Q.E. II restructuring

was an exception.

[540] In anticipatory labour relations restructuring proceedings unions have to first hear

and then accept what the employer says it will be doing is likely to happen. There has

to be a high level of confidence and trust in what the employer says and, in the private

sector, that market forces will not change the employer’s plans. In the public sector the

unknown is political forces.

[541] In 2014, the unions acted in anticipation of district health authority consolidation

without knowledge of the specifics in an effort to avoid potentially acrimonious and

disruptive proceedings. This was expressed in the February 14^thletter from the Nova

Scotia Federation of Labour to the Premier and Minister as follows: