What's the Problem with Arbitration
I have only a rudimentary understanding of the arbitration process (mostly based on following MLB), so forgive me, if I don't use the right language etc.
My grasp of the concept is that if the two sides are unable to agree, a neutral third party listens to both sides, and then decides on a fair compromise position. Then, everybody goes back to work, and the contract is done.
In principal, this doesn't sound so bad, and the best part is that no one gets caught in the middle. Students, and single-mothers, etc, don't lose services over something they have no control over.
But, it seems that this is generally frowned upon by unions? Why?
Does the government pick arbitrators more sympathetic to their cause? Is the process grossly unfair and biased? Why is it so undesired by unions in general?
I'll assume you're merely naive. Workers like to negotiate the terms and conditions of their own employment and decide by majority vote whether they will work under those conditions or not. The Supreme Court of Canada actually believes this (collective bargaining) is a right protected by the Charter. In arbitration, some stranger tells you what your terms and conditions of work will be. The workers don't get to vote. They might luck out, or not, but there's this little thing called freedom. And please don't tell me that if the workers don't like it there, they are free to quit.
Government employees in Canada did not gain the right to strike for decades after workers in private industry. The vestige of that is the ability of government employers to use the hammer of legislation to force their employees to return to work. So that is the environment in which binding arbitration clauses have developed.
Government workers are not slaves.
I don't think it's a bad thing when there's some sort of critical public need for there not to be an interruption of work. That's not even potentially the case for the vast majority of workers on strike in Toronto. It can be desired by unions in particular cases where they think they'll get a better deal from the arbitrator than their employer, but they're against it in general because it is an infringement on the right to strike.
Of course its the worst kept secret in Toronto that CUPE is dying to have the province step in and bring in back to work legislation, because they know that binding arbitration is almost certain to give them a better deal than anything the city will ever agree to. But since it hasn't been hot and humid enough for the garbage to smell and since the Pope isn't coming to town - there is little chance that McGuinty will do that - so on and on and on the strike goes....
Correction, Doug. Imposed arbitration is an infringement on the right to accept or reject particular terms of a settlement. It has nothing to do with the right to strike as such. You're thinking of back-to-work legislation, which may or may not be combined with binding arbitration.
I see. Thanks for the info.
Does it happen often that both sides willingly agree to go to third party arbitration, or is it almost always accompanied by back-to-work legislation?
Some people like police and fireman and women automatically get arbitrated settlements because they are too essential to ever go on strike.
"Some people like police and fireman and women automatically get arbitrated settlements because they are too essential to ever go on strike."
And do firemen and police generally get exploited through low wages, worse benefits etc, as a result?
Or is simply not having the right to strike exploitation enough?
The chic modern word is firefighters.
In general, the consensus is that firefighters and police get BETTER wages and benefits as a pseudo-compensation for not being allowed to strike. I think if I was a public service employee and i had a choice between lower wages and worse benefits and being allowed to go on strike and having no paycheck for weeks on end OR giving up the right to strike in exchange for getting higher wages and better benefits thanks to arbitration - it would be a no brainer - give me the arbitration!
I'm not trying to be anti-union, but look at it this way:
At the end of the strike, the union workers are going to be paid X wage and Y benefits.
However, in order to ascertain the values of X and Y, they have had to go Z weeks without any pay, and the people of Toronto will have had to endure Z weeks without various services, potentially resulting in some loss of life.
It just seems a shame that there is no way to obtain the values of X and Y, where they represent fair wages and benefit packages without this process. If the firefighters (thanks, writer), and police are satisified with their arrangements, then perhaps a similiar model could work for other union employees. I'm sure that everyone involved would love to just jump to an agreement without the ugly process in the middle.
1. The vast majority of contracts are renewed without strikes or lockouts or binding arbitration or anything of the kind - well over 90%. Unions and employers are skillful at finding settlements that serve both sides, rather than risking having some stranger impose terms which could end up poisoning a relationship out of benign ignorance.
2. Back-to-work legislation is extremely rare. The federal government, for example, imposed it once or twice in the past decade.
3. In the federal public service (for example), unions are allowed to choose arbitration or the right to strike before negotiations begin. Voluntary selection of arbitration is far more common than imposed end to strikes.
There are numerous factors that influence a public sector union's decision whether to agree to arbitration.
"Essential services bargaining" as it it known, is a long drawn-out process that has to be concluded before any issues can be tabled, where the union and employer negotiate the staff positions that would be considered essential to public health, safety or the administration of essential public services (or something like that) in the event of a strike. Those staff would be required to report to work throughout a strike. This factor has a huge influence on the likely outcome of a strike. So in the case of police and firefighters for example, they do not have the legal right to strike, and it is unlikely that they would fight for that right knowing that probably 75% of them would be designated essential services.
Another similar issue is the existence in the public sector of parallel "professional" unions that do much of the same work in the same workplaces as many bargaining unit members, but under a separate contract that is negotiated to reflect whatever gains the real union manages to produce (plus usually a little extra to sweeten the pot). So that is another huge contingent of workers who are not essential under the law but who continue to report to work during a strike.
As I mentioned above, another factor is the knowledge that the employer has the hammer of legislation in its back pocket.
http://www.nupge.ca/news_2006/n18jy06a.htm
That article was written in 2006. Subsequently in 2007 the Supreme Court released the Health Services decision that said that the government of BC had violated the Charter rights of its employees by writing statute law that infringed their ability to collectively bargain. That decision changed the landscape for public sector negotiations in Canada by finding a constitutionally protected right to collectively bargain under the Charter s. 2(d) right of association.
Last year in Ontario there was talk that CUPE 3903 York U. would mount a Charter challenge of any return-to-work law that the province decided to impose on them, and this was why the premier was so reluctant to use that tool, not wanting to be the respondent in a smelly high-profile leading case appeal, and out of concern that on the facts of this case Canadian governments could lose all ability to legislate non-essential workers back to work. In the end though CUPE made an announcement that they would not be proceeding with that appeal, on the same day that the back-to-work law was passed. One suspects quid pro quo.
After the Supreme Court thing, didn't Gordo say "So what?" or something equivalent to that?
"I'm not trying to be anti-union, but look at it this way.."
No.
The Health Services decision struck down Bill 29, the BC Liberal government's 2001 legislation that ripped up health care workers' collective agreements mid-contract. A settlement was eventually reached with the workers and unions affected by Bill 29.
www.heu.org/Bill_29/
http://www.bcgeu.bc.ca/Settlement_reached_on_Bill_29_court_ruling
The larger issue in Health Services was the finding that our constitutionally-protected freedom of association includes the right to collectively bargain. The Court stopped short of outright protecting the right to strike, but it said that a government has no business using its legislative power to circumvent collective bargaining (usually with its own employees) except in very limited circumstances.
Since 2007 other Canadian governments have disrespected this principle but I haven't heard of any return-to-work laws in BC specifically. I note that BC Ambulance Service CUPE members have been on strike since April.
http://tiny.cc/Suqoq
Is there any documentation out there that describes what an arbitrator will look at when deciding on the terms of a contract? My membership looks headed for arbitration even though the bargaining committee and union recommended a contract. The membership is adamant on wages, and the employer's corporate office says there's no more money and they're not coming back to the table. Some people believe that an abitrator will look at average wages in our category, others believe an arbitrator will look at average wage INCREASES in our category, and still others(such as the union) believe the arbitrator will just enforce the contract that the bargaining committee and company came to an agreement on. Anyone have any information/experiences?
Thanks,
Tom