Time to Rethink How We Regulate Long Work Stoppages?

Published on December 7 2012

And on it goes.  Talks between the NHL and NHLPA have yet again broken down.  It’s now looking more and more like another entire season will be lost.  The parties have been at an ‘impasse’ for weeks, if not months.  Government mediation has failed.  Meetings with individual owners and players without the two chief negotiators has failed.  So now what?
Under American law, which has been governing this process, nothing happens.  The lockout will just continue indefinitely until one side or the other caves or the parties decide that losing $20 million per day is worse than reaching a deal of some sort.  Only 750 wealthy employees and a hand full of super rich employers are directly involved in the dispute, but thousands of other workers and businesses that rely on NHL games are suffering as a result of this extended stoppage. There is heavy collateral damage.   The union could decertify, which could make the lockout illegal, though what result that would have for the future of the NHL is uncertain.  It wouldn’t surprise me if the NHLPA moves towards the decertification route now, since other options for kick-starting the bargaining process have dried up.

Should labour law have a better set of tools for dealing with this sort of entrenched warfare?  What would those tools look like?

In the U.S., collective bargaining is not constitutionally protected, yet governments never intervene in work stoppages.  In Canada, collective bargaining is constitutionally protected, yet our governments frequently intervene in work stoppages by passing back to work legislation.  Usually, this occurs with respect to public sector workplaces, though the Federal Tories have recently begun to intervene in private sector disputes too (Air Canada, CP Rail). When Canadian governments intervene by ending work stoppages, they claim they are doing so to protect innocent third parties from harm inflicted by the stoppage.  Usually, when a work stoppage is ended by legislation, the government substitutes a neutral interest arbitrator to hear submissions from the parties about the outstanding issues, and then impose a collective agreement.
How about a law that would ensure that work stoppages have a limited shelf life?
There is one very obvious legal tool that could make long work stoppages a thing of the past:  allow either the union or the employer to request a neutral, expert interest arbitrator or three person arbitration board be appointed to impose a collective agreement after a work stoppage has continued for some period of time.  The Manitoba legislation uses 60 days as the marker. That seems like a sensible number, since it is long enough that in most cases the parties would still feel pressure to reach a deal.  And as the 60 day marker approaches, uncertainty about an arbitrated outcome would create pressure to compromise.
In most Canadian jurisdictions, binding interest arbitration can now only be accessed if both parties request it.  Section 40 of the Ontario legislation
 

is an example. Both sides rarely jointly request arbitration, since one side or the other usually believes they’d be better off continuing the work stoppage.  A law that allowed either party to access arbitration after a work stoppage has lasted 60 days would still encourage settlements in the vast majority of cases, since 60 days is a very long time.  The vast majority of work stoppages last less than 30 days.  However, a law that gave access to arbitration after 60 days would place a limit on collateral damage caused by work stoppages, and allow for better contingency planning by everyone. If you can’t solve your bargaining problems in 60 days of a work stoppage, the state will give you the option of having a neutral expert arbitrator solve it for you.
To give you a feel for when a law like this would be relevant, consider the following recent long work stoppages, some of which were strikes and some were lockouts:
A 60 Day Interest Arbitration Law Would Have Been Relevant to the Following Work Stoppages

York University TAs:  85 day work stoppage

Windsor City Workers:  101 days

B.C. paramedics: 7 months

Vale Inco:  358 days

Stelco:  11 months

Rio Tinto Mine (Quebec):  6 months

A 60 Day Interest Arbitration Law Would Not Have Kicked in in the Following Work Stoppages

Ottawa Transit Workers:  51 days

Toronto City Workers: 35 days

Questions for Discussion
What do you think about the proposed law, which would allow either side to refer a dispute to interest arbitration after 60 days of a work stoppage has passed?
If such a law were introduced in your province, do you think one party (unions or employers) would object, and why?  Does such a law tend to favour one side or the other?
Are you surprised that politicians are not more seriously considering a law like this, given that public attitude seems to be strongly against long work stoppages these days?