Here we go again.
It seems every few months, some politician looking for media press time proposes the idea that the TTC should be deemed an “essential service”. This time it is Liberal MPP David Caplan. Last year it was a few city of Toronto councillors. Nothing has ever come of these proposals, but they are popular with the public, most of whom I suspect would like public sector unionization to be prohibited altogether. The actual proposal would be to ban strikes and lockouts at the transit company, and instead to refer all bargaining disputes to an ‘interest arbitrator’, who would impose a collective agreement.
Here’s Caplan’s argument, as quoted in the Star:
We’ve had too many work stoppages over the course of recent years. Enough is enough. The party line is that these kinds of arbitration processes cost more than collective bargaining. I don’t buy that. Because what happens, as we’ve seen the last several rounds, is we have a work stoppage, the province convenes an emergency session to send people back to work and to send it to arbitration. If the rules of the game were set out ahead of time, it would give far more motivation for both sides to get to work to settle things … to keep the transit system and the city running much more effectively.
Are you convinced by this argument? Studies, including the CD Howe report referred to in the Star article, find that the cost of settlements ordered by arbitrators is higher than that under bargained agreements. But Caplan disputes the empirical evidence on the dubious basis that, if everyone knew the dispute was going to arbitration right from the get go, that there “would be more motivation for both side to … settle things.” Unfortunately, industrial relations research tends to show a much more complex situation.
Scholars use the phrases “narcotic effect” to describe the observation that parties subject to mandatory arbitration tend to reach fewer voluntary settlements, and the “chilling effect” to describe the idea that parties who know they are going to arbitration will not put forth their best offers during negotiations for fear that the arbitrator will simply split the difference between the offers last on the table. In other words, the argument is that if you know there won’t be strikes or lockouts, you are inclined to just hold back and wait for the arbitrator, rather than try to bargain a mutually acceptable deal. In addition, some Canadian studies have found that banning strikes leads to greater amounts of other conflict, such as more grievances (for example, see R. Hebdon & R. Stern, “Tradeoffs Among Expressions of Industrial Conflict: Public Sector Bans and Grievance Arbitration” (1998) INDUSTRIAL & LABOR RELATIONS REV.), which then impose even more costs on the employer in the form of arbitration.
Oh, and then there is the possibility that an outright ban on strikes by transit workers would provide a perfect test case for unions waiting to ask the Supreme Court to recognize a constitutional right to strike in the Charter. (See my earlier discussion about back to work legislation and the York strike) I noted recently that this is the big looming issue in labour law that has academics and practitioners all worked up. Then there’s the fact that neither the City of Toronto, the TTC, or the union want the right to strike/lockout banned.
My guess: Caplan’s proposal will go no where, and he knows it (Don’t forget that the Liberal Party received a lot of support from unions). The Premier’s position has been that negotiated agreements are better than imposed agreements, and removing the right to strike from TTC workers would almost certainly lead to less negotiated agreements and maybe even a Charter challenge that the government would rather avoid. Nevertheless, it did Caplan on to the front page of the Toronto Star!
