The NHL’s lockout of its players continues, with no end in site. This work stoppage is obviously having harmful economic impacts on all those businesses that depend on the NHL games for revenues, including arenas and their staff, restaurants and bars, hotels, merchandizers, taxis, public transit, and so on.
In New York, a politician for the Buffalo area has called for low interest loans and grants to be given to effected businesses, and has asked the NHL and players to contribute to the fund. Good luck with that. We know in Canada that our governments in recent have been very keen on intervening in labour disputes. Usually the explanation is that the negotations have reached an impasse, and the work stoppage is having harmful effects on third parties and the economy.
Should laws allow either union or employer to opt for arbitration to end a work stoppage?
When work stoppages are ended by the government in Canada, a process of interest arbitration is substituted, in which an supposedly independent expert arbitrator (or arbitration board) is tasked with writing the collective agreement for the parties. I saw ‘supposidely’ because the Federal Tories have had some difficulty with this process, having their appointment of arbitrators overturned multiple times by judges who ruled that the government’s choices were inappropriate or not non-bias. However, most governments have respected the idea that the arbitrator should be perceived by both parties to be neutral, expert in labour relations, and fair.
One Model Requires Agreement by both Union and Employer to Refer Dispute to Arbitration
Labour legislation in Canada usually permits the parties to a work stoppage to agree to refer the matter to an arbitrator. However, there is often on party that feels they are better off continuing the work stoppage than sending the dispute to an arbitrator, who is unlikely to award them everything they want to achieve. Think about the NHL. The NHL is trying to win a very large concession from the players, and Bettman is no doubt confident that the players will eventually cave because losing a whole years’ pay is a substantial loss. The players will never recover their lost money, and their careers are short. On the other hand, most NHL owners are losing money when the games are played, or barely breaking even, so writing off a season is not a huge financial burden. In short, the employer has far less to lose from a lengthy work stoppage than do the players. So why would the NHL agree to be bound by an arbitrator’s decision?
The state, however, has an interest in ending the hardship to all of the ‘innocent’ businesses who are being harmed by the lockout. How can the state both permit the parties latitude to bargain their own deal, and allow the use of a strike or lockout to apply pressure to reach a deal, but then also have a predictable system to prevent harmful stoppages from continuing indefinetly?
Alternative Model Permits EIther Party to Refer Dispute to Arbitration to End a Work Stoppage After a Period of Time
The Manitoba Labour Relations Act provides an interesting option, which I confess is growing on me. It grants the union or employer the right to request interest arbitration if they think bargaining has reached an impasse, after a specified period of time. It is a change from the more common model that requires agreement by both parties to go to arbitration and thereby end the work stoppage. The key sections begin at s. 87.1, which says this:
87.1(1) Where a collective agreement has expired and a strike or lockout has commenced, the employer or the bargaining agent for a unit may apply in writing to the board to settle the provisions of a collective agreement if
(a) at least 60 days have elapsed since the strike or lockout commenced;
(b) the parties have attempted to conclude a new collective agreement with the assistance of a conciliation officer or mediator for at least 30 days during the period of the strike or lockout; and
(c) the parties have not concluded a new collective agreement.
Therefore, this section only comes into play after a work stoppage is already 60 days along, and after extended conciliation has failed. The legislation then grants the Board the power to terminate a strike or lockout and refer the matter to neutral interest arbitration (s. 87.3). There are some other conditions and variables, but this is the basic idea. The 30 days of concilation sounds like a high threshold, so there would need to be a system to ensure neither party can delay and prevent that process. Perhaps that requirement could be waived or reduced if there is evidence that one of the parties is not making reasonable efforts to attend the conciliation. I don’t know how this works in practice in Manitoba.
What do you think of this idea? I like it because it leaves the threat of a work stoppage there, so that both parties will still have an incentive to reach a deal before a work stoppage begins. But the availability of arbitration after 60 days of a work stoppage also signals that there will be an end to this work stoppage, and a process of arbitration. This will discourage the strategy of trying to starve the other party into absolute submission, while allowing third parties to plan their business strategies accordingly. In the NHL situation, there would be greater urgency now to get a deal done, because of the uncertainty of the approaching arbitration. This might tend to discourage what we are seeing now–long periods of nothingness, no meetings, no bargaining, no discussions. Just waiting til one party caves.
Even though the Winnipeg Jets are governed by this legislation, it seems unlikely that the process could be initiated and applied to the NHL and NHLPA as a whole. However, the sad NHL situation provides a good set of fact to think about how this type of legislation for regulating work stoppages could build in greater incentives on the parties to reach a deal.
Do you like the Manitoba option of allowing either party to submit the dispute to arbitration after 60 days of a strike or lockout?
Do you prefer the Ontario model that allows a work stoppage to continue indefinetly if no deal is reached?
What are arguments for and against both models?