By David Doorey, York University
The latest CUPE 3093 strike by part-time instructors at York has entered its second week. If the strike continues without meaningful progress in negotiations, we will soon probably reach a point at which one side or the other proposes that the dispute be referred to binding interest arbitration for resolution. That would mean that the strike ends and the remaining issue in dispute are assigned to an arbitrator with power to issue a binding collective agreement.
In fact, just this week, a coalition of York unions proposed binding interest arbitration to resolve the ongoing dispute over backpay claims arising from the Ontario government’s unconstitutional Bill 124 wage freeze law. Obviously, the unions believe that arbitration will result in a good deal for workers on this narrow issue of backpay. Will York agree to arbitration? In recent years, York has been a strong proponent of referring bargaining disputes to arbitration, but CUPE has rejected arbitration. So it will be interesting to see if York has a sudden change of mind now that it is the union’s proposing arbitration. However, it would not be entirely surprising if York concludes that arbitration is not in its best interest with regard to the backpay issue. After all, the party that wants arbitration at York has varied over the years.
That is the lesson of this post: a party’s position on the desirability of interest arbitration to resolve bargaining disputes depends on an assessment of whether arbitration is more or less likely to help that party achieve their bargaining objectives. That calculus can change based on circumstances. As a general rule, labour relations folks believe that arbitration is inherently conservative, so that if the bargaining goal is to make a break-through of some sort or to break from a pattern in the industry, then arbitration may not be helpful. For example, if arbitrators have been giving out high wage awards and an employer is trying to avoid raises, then the employer won’t be excited about arbitration.
Interest arbitration is always an option to resolve work stoppages, provided both sides agree to the process. Voluntary arbitration is provided for in Section 40 of the Labour Relations Act. However, in practice, voluntary interest arbitration is not utilized all that often because either the employer or the union rejects it.
There are some labour advocates who reject interest arbitration in all cases on principle, arguing that ultimately the power of the strike is sacrosanct and should never be relinquished. However, this hard line approach is not adopted by most unions. If you pay attention, you will find examples of most unions at one time or another advocating arbitration as a way to end a work stoppage. Often this is because they realize that, considering the lost wages already suffered during the work stoppage and the potential for the dispute to drag on for weeks or months more, they need to get the workers back to work to live to fight another day. Similarly, employers can flip flop back and forth over time on whether they support arbitration as a way to end bargaining disputes.
The Fluid Nature of Support for Binding Arbitration at York University
Take York, for example.
In both 2008 and 2018, it was York that advocated hard for binding interest arbitration to end the CUPE 3093 strikes, and CUPE rejected the option. York argued in 2018 that:
York University, 2018: “Interest arbitration is a legitimate and time-tested part of the collective bargaining process. It does not get in the way of the labour negotiation process.”
Ultimately, after CUPE rejected arbitration in both of these earlier strikes, the government introduced back-to-work legislation that imposed binding interest arbitration (in 2009, the parties reached a deal immediately after the law was introduced).
However, in other bargaining disputes, York has steadfastly rejected interest arbitration. For example, when the union (YUFA) representing full-time faculty proposed arbitration to resolve a professor’s strike in 1997, York adopted a very different attitude towards arbitration. The Board of Governor’s wrote:
“The York University Faculty Association (YUFA) has publicly asked the Board to move the negotiations to binding arbitration. This is something that the Board cannot support. A third party arbitrator should not decide our academic goals nor our fiscal capability to achieve those goals.”
York equated arbitration to “handing over the future of the institution” to a third party who is not accountable to anyone:
York University, 1997: “Arbitration risks handing over the future of the institution, and the definition of a new contract for faculty, to a third party who cannot possibly appreciate the subtleties and complexities of a university such as York. University administrators and faculty must determine an effective contract and its budgetary implications through collective bargaining. Engaging in arbitration on these issues is tantamount to allowing an outsider who has no continuing interest in, or commitment to, the University to have the authority to decide academic priorities for the institution. The arbitrator, unlike faculty and administration, is not accountable for making his or her decision work. Arbitrators do not have to find the money to meet the costs of their judgements, nor must they live with the impact of their decisions.”
What Will Happen Next?
If recent history is any indication, CUPE is likely to resist binding arbitration in 2024. Barring a negotiated settlement, this will put us on the same pathway as in 2008 and 2018 towards back-to-work legislation, particularly if the work stoppage threatens the term for students. It’s possible that such legislation could be the subject of a Charter challenge for interfering with freedom of association, although the utility of that litigation would depend ultimately on the arbitrator’s award among other factors that we don’t have time to get into here.
The recent proposal from some other York unions to refer the dispute over back wages arising from the illegal wage freeze law to arbitration will require a response from York. Will York stay true to its recent position that arbitration is a sensible and fair method for resolving bargaining disputes and agree to the unions’ proposal? Or will it attempt to split labour relations hairs and argue that while arbitration is sensible to resolve the CUPE strike (if that is the position it takes this time), it is not at all a good idea for resolving the relatively straightforward issue of what percentage back pay award should be issued? The latter position might expose York to claims of hypocrisy, but would at least have the benefit of demonstrating that support for arbitration is entirely contingent and context specific.