Howling at the Moon
Why did Nova Scotia business wail wolf over first contract legislation?
On Dec. 14, 2011, Sobeys announced it was swallowing whole every one of Shell Canada’s 250 service stations east of Ontario.
No big deal. The day before, Empire, which controls the Canadian super-sized supermarket chain, had reported a quarterly profit of $78.1 million. Sobeys had the cash to buy whatever it wanted. Buying Shell’s stations offered the company “an exciting opportunity” to expand its own already expanding retail gas bar-convenience store network. Fair enough.
What was most interesting about the deal, however, was what was unsaid. Twenty-three of the service stations were in Nova Scotia.
Nova Scotia?
Five days before, the Nova Scotia legislature had passed “totally unnecessary” legislation Sobeys that declared would “do serious damage” to the province’s business investment climate. During a rare appearance before the legislature’s law amendments committee, the company hinted ominously that if the government passed its proposed business-busting bill, it would . . . well, “affect” how Sobeys (Nova Scotia’s largest retail employer) did business in its native province.
Take that, Darrell Dexter!
What had the NDP government done to wrap Sobeys’ knickers in a knot?
The legislation, known as Bill 102, provides for something called first-contract arbitration. It’s specifically tailored for those rare situations when newly unionized workers and their employers can’t reach a first contract themselves — perhaps because the employer refuses to negotiate, or the union demands the moon, or the company and workers simply aren’t used to bargaining collectively. If the two sides can’t settle their differences in a reasonable time, an arbitrator can impose a one-time contract.
Such legislation is commonplace. The first first-contract arbitration law in Canada was passed in British Columbia in 1974. “Employer-unfriendly” B.C., of course, is where Sobeys spent $260 million to buy up a rival supermarket chain in 2007. And Quebec — where most of Sobeys new Shell stations are located — has had such legislation since 1978.
Today, six provinces and the federal government all have some form of first-contract arbitration. Eighty per cent of Canadian workers, including the 15 per cent of Nova Scotians employed in federally regulated enterprises, are covered.
Those laws haven’t, as its Chicken-Little critics contend, encouraged workers to recklessly embrace evil unions. Canada’s unionization rate has been declining in every province for decades.
The law is rarely used. In Manitoba (the province on which Nova Scotia’s legislation is based), there were just six applications for first-contract arbitration from 42 newly unionized workplaces in 2009-10. Only two of those resulted in imposed contracts.
In fact, studies show the mere existence of legislation increases the chances of a negotiated contract and reduces work stoppages by a “statistically significant” 65 per cent. Not a bad outcome, surely.
And it isn’t just unhappy unions that apply. In British Columbia, fully one-third of arbitration applications come from employers.
So . . . why did Nova Scotia businesses wail “wolf” over first-contract arbitration?
“Fundamentally, every employer needs to be in the position of determining wages, benefits and working conditions,” the Nova Scotia Employers’ Roundtable says. A consortium of 21 of the province’s most powerful non-union employers (including Sobeys, Michelin, Irving, Nova Scotia Power, Wal-Mart Canada, Killam Properties and Oxford Frozen Foods), it wrote a lecturing letter to Nova Scotia Premier Darrell Dexter last Fall insisting that companies alone “ultimately have the right to say ‘no’ if it in good faith considers that doing otherwise would adversely impact its interests.” (They apparently haven’t read Section 2(d) of Canada’s Charter of Rights and Freedoms, which includes collective bargaining rights, but that’s another story.)
Businesses want governments to butt out of their business — except when they don’t. Then they want governments to do their bidding.
In Nova Scotia, for example, where employers have traditionally wielded unfettered control over their workplaces, powerful, and powerfully anti-union companies like Michelin have been able to bully governments on several occasions to rewrite provincial labour laws to make it impossible for the company’s workers to organize, let alone bargain for a first contract. Those laws are still on the books.
First-contract legislation is now law. Will companies like Sobeys stop investing because of it? Will the union hordes descend? Will the sky fall? Stay tuned, but don’t hold your breath.
From the March/April 2012 issue of Atlantic Business Magazine.
Copyright 2012 Stephen Kimber
The price of judicial independence… and fairness
With 760 bus drivers walking picket lines, 130 brewery workers on the edge of lockout, 870 professors voting to strike and 3,800 health care workers heading for conciliation, it’s no surprise news that 36 provincial court judges have a new three-year deal with the province passed almost entirely unnoticed.
Judges don’t actually negotiate their salaries. That would be unseemly. An association speaks for them—sort of a union, but with a gentler sounding name and less formal power. Who needs formal power when you’re speaking for judges?
Judges can’t strike. A three-member tribunal hears submissions from their association, the government and anyone else who cares to comment. The tribunal considers those arguments and then decides. Binding arbitration, if you will, but without the baggage.
The ostensible reason for all this non-negotiating negotiating is to “maintain the independence of the judiciary,” so they can’t be “corrupted by the temptation to curry favour among certain litigants in order to gain financial advantage.”
Judges, of course, have mortgages, families, needs and wants. Not to mention jealousies that judges in other jurisdictions get more than they do. Their issues aren’t that different from us lesser mortals. Salaries, pensions, perks.
So how did the judges do?
Not badly. During the past 10 years, in fact, provincial court judges’ salaries in Nova Scotia increased from $144,000 to $207,577.
And, while the province is committed to holding the line at one per cent for other public servants, the tribunal decided judges needed three per cent. New salary: $214,000.
Pensions? The tribunal decided the public service pension plan, which caps indexing for everyone else at 1.25 per cent, isn’t sweet enough. Judges’ pensions—paid out of the same pot—will be indexed at 75 per cent of the consumer price index to a maximum of five per cent.
I’m not quibbling with the specifics.
But I would note that three per cent of a judge’s salary adds up to close to $7,000 more a year, while one per cent of the average Nova Scotian’s salary—$39,500—totals less than $400 a year.
The gap between those who have and those who don’t grows. Still. Again.
Copyright 2012 Stephen Kimber
With friends like Jamie Baillie, bus driver don’t need enemies
So let me see if I have this right.
When workers are at their most vulnerable—when, for example, they’ve decided to join a union and are attempting to negotiate a first contract with a more powerful, perhaps hostile employer—Jamie Baillie is a champion of free collective bargaining. Let the chips fall where they may… so long as they fall the way of Michelin and Sobeys.
On the other hand, when workers have some leverage—when, to pick another example out of the ether, transit workers vote 98.4 per cent to stop driving their buses to put pressure on the employer to negotiate better terms—Jamie Baillie thinks collective bargaining is a crock and wants the premier to legislate them back to work. Immediately.
At least the Tory leader is consistent in his inconsistency.
Jamie Baillie
When given the choice, Baillie will inevitably come down on the side of the over-dog.
Baillie doesn’t put it that way, of course. “I’m a believer in collective bargaining,” he declared disingenuously Friday.
Baillie’s idea of collective bargaining? The premier should lock both sides in his office, “tell them they’ve got 12 hours to work out their differences and if they’re not able to do so, then he’ll settle it himself.”
How would Baillie settle it? While he doesn’t offer specifics—three guesses on which side he would pick as premier—Baillie did say he wants the province to consider declaring transit an essential service so future collective bargaining could be rendered meaningless.
He’s a “believer” all right.
I will confess I’m not sure who’s right and who’s wrong in the current strike—or if the answer to that question can be one or the other.
But I do know both sides are under enormous pressure to find a settlement. Union members face the daunting prospect of buying groceries and paying mortgages on meagre strike pay. Management has to know that if the strike drags on it risks a permanent loss of riders to carpooling, biking and walking.
There may come a time when legislation is necessary. But not yet. Let the two sides bargain collectively. Without meddling from “believers” like Baillie.
Copyright 2012 Stephen Kimber
Metro Transit negotiations require talking… and leadership
Whatever else one can say about the rights-wrongs of the current Metro Transit strike, it is clear city negotiators were never interested in negotiating with its 760 bus drivers, ferry operators and support staff.
The contract between Metro Transit and the Amalgamated Transit Union expired Sept 1. There was just one face-to-face session—essentially a presentation of proposals—before the city applied for conciliation. That’s unusual. According to the union, the city and its police and water commission unions are still negotiating new contracts two and four years after the previous ones expired.
From November to January, the two sides met with a conciliator eight times before the city walked away, triggering a conciliator’s report, a strike vote and the countdown to the now ongoing work stoppage.
City negotiators twiddled their thumbs until 30 minutes before last Wednesday’s midnight strike deadline. Then they offered the union—which had a 98.4 per cent strike mandate—an either-or, take-it-or-leave-it offer.
The key sticking point isn’t money but scheduling.
The city blames a century-old rostering system—which allows senior drivers to pick their schedules first—for $1 million in un-budgeted overtime. (A city report, however, acknowledges those cost overruns include covering for vacancies, sick leave, holidays and special events, and represent only one factor in Metro Transit’s $3-million deficit.)
The drivers say they need rostering because of the split-shift nature of their jobs. A driver, who is required to report for work at the Transit garage 15 minutes before a 6 a.m .shift, drives for four hours and may find herself ending her shift far from the transit garage—and her car. She then has four hours to kill before beginning her 2 p.m. shift somewhere else. An eight-hour day suddenly becomes more than 12.
Surely, there are ways to make the rostering system more efficient for Metro Transit without eliminating its obvious lifestyle benefits for long-time drivers.
But in order to accomplish that, the two sides would have to talk.
There’s no sign that will happen soon.
And no sign either of leadership from city hall to make that happen.
Copyright 2012 Stephen Kimber
First-contract arbitration: the sky is(n’t) falling
Eric Durnford says if working conditions in Nova Scotia now were the same as in 1984, he too would support first-contract arbitration. Durnford, a prominent labour lawyer who represents employers, was responding last week to a union presentation on why we need the law.
Back in 1984, a CUPE official reminded the law amendments committee, workers at Keddys Nursing Manor in Halifax joined a union. Their employer refused to negotiate, suspending one union executive and forcing another worker to clean a floor with a toothbrush. It took the employees four years and an 18-month strike to win their first contract.
That was then. Now, Durnford says, Nova Scotia is a labour-relations utopia. We don’t need no first-contract-arbitration legislation.
Strangely, I can’t find any evidence Durnford—who was already an influential labour lawyer in 1984—spoke up for first-contract arbitration back when he says it might have been worth supporting.
Or perhaps not so strange. Self-interested supporters of the status quo inevitably claim that now—whenever now is—is the best-of-couldn’t-be-better times. And predict the sky’s collapse if it’s changed.
Last week, Corporate Chicken Littles Sobeys and Michelin—two of our biggest employers and, perhaps not coincidentally, two of our most successful government teat-suckers—lined up at law amendments to paint the sky black and gone.
Unions, they predcicted, would take advantage of the law to bamboozle their unsuspecting—and otherwise, of course, happy-happy—workers into signing union cards.
Reality check Number 1. Statistics show union membership is declining across the country, including in provinces with first-contract legislation.
In British Columbia, which has had first-contract arbitration since 1993, only 10 per cent of initial contracts go to arbitration, and fully one-third of those applications come from employers. Oops.
And such legislation, our concerned-only-for-what’s-best-for-the-province corporate spokes-folks also warned, will scare off potential investors.
Reality check Number 2. In 2007, Sobeys shelled out $260 million buy a supermarket chain in… uh, investment-slaughtering British Columbia.
Sobeys also currently operates 16 stores in Manitoba, all acquired long after that province’s supposedly draconian first-contract legislation came into effect.
Welcome to 2011.
Shades of Orwell’s 1984.
Copyright 2011 Stephen Kimber
First contract arbitration: tilting the balance or righting the balance?
So Nova Scotia’s largest non-union employers are eager to preserve an unfettered collective bargaining process. They are, they claim, deeply concerned about “a third party deciding what will be the appropriate terms and conditions of employment.”
How progressive.
Where were they when the Harper government systematically ripped the guts out of that process during the recent Air Canada and Canada Post disputes?
Nowhere.
Oh, right. They don’t want to preserve collective bargaining; they want to prevent it.
Last week, the Nova Scotia Employers’ Roundtable—made up of 21 employers “representing” 34,000 workers—sent a letter to Premier Darrell Dexter, expressing horror at even the whiff his government might contemplate “first contract arbitration” legislation.
First contract arbitration is specifically designed to protect workers who choose to join a union and whose employers then refuse to bargain in good faith on a first contract. It happens—rarely, but it does. When it does, the legislation provides, initially, for conciliation or mediation. If that fails, there is the big stick of an imposed settlement. Studies show the threat of first contract arbitration increases the chances of a negotiated contract and reduces work stoppages by a “statistically significant” 65 per cent.
Conservative leader Jamie Baillie calls it a “crazy idea” and warns it will be a job killer.
Really? Six provinces and the federal government have similar laws. Eighty 80 per cent of Canadian workers—including the 15 per cent of Nova Scotians working in federally regulated industries—are already covered.
Where are all those dead jobs, Jamie?
For his part, Liberal leader Stephen McNeil frets such legislation will tilt the balance in favour of workers.
Earth to Stephen. During the 1970s, Nova Scotia governments—at the behest of powerful, and powerfully anti-union, Michelin Tire—rewrote the province’s labour laws on several occasions to make it virtually impossible for the company’s workers to organize, let alone bargain for a first contract. Those laws are still on the books.
Tilt the balance? Perhaps it’s time to take the corporate thumb—and fist—off the scale.
And perhaps—just perhaps—it’s time Stephen McNeil and Jamie Baillie stopped shilling for the powerful and spoke for the least powerful, including unorganized workers.
Copyright 2011 Stephen Kimber
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About
STEPHEN KIMBER, a Professor of Journalism at the University of King's College in Halifax, is an award-winning writer, editor and broadcaster. He is the author of one novel -- Reparations -- and seven non-fiction books.
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