A recent dust-up in the house of labour has raised questions about when unions should opt for arbitration. When the Ontario Secondary School Teachers’ Federation (OSSTF) struck a “tentative deal” with the province in late August seeming to surrender the union’s right to strike in favour of binding settlement, this usually banal and technical issue momentarily became a political flashpoint.  

Under the proposed plan, OSSTF would continue its current education bargaining with the government until the October 27 deadline, after which any outstanding issues — likely to be disagreements over wages and class sizes — would be sent to binding arbitration. 

Rather than planning to strike after a bargaining impasse, OSSTF has instead tentatively opted for the technical route of an imposed settlement. At this stage, the union has not conducted a strike vote to test members’ resolve and demonstrate to the employer that workers are united in their demands. 

Union members are voting until September 27 on whether to accept the arbitration plan. Unsurprisingly, many are unhappy with the proposal. Indeed, there are locals of the OSSTF openly criticizing the deal. Such frustration is easy to understand. 

Of course, criticism hasn’t been confined to the union itself. A few days following OSSTF’s announcement, labour studies professors Stephanie Ross at McMaster University and Larry Savage at Brock University published an article raising a series of issues with the union’s plan. 

Bea Bruske, president of the Canadian Labour Congress (CLC), in a since deleted tweet, reshared the above article with a caption emphasizing the importance of the right to strike. “The right to strike is a cornerstone of worker power, and for good reason. When all else fails, being able to withhold your labour is the only thing workers can do to get what they deserve. It should never be given away lightly,” Bruske wrote. 

Karen Littlewood, president of OSSTF, apparently didn’t appreciate Bruske’s commentary. In a letter to the CLC president, Littlewood claimed she was “shocked when my members complained to me about your tweet interfering in an internal OSSTF/FEESO membership decision.” The OSSTF is an affiliate of the CLC. 

“Your public comments characterized OSSTF/FEESO [...] as careless in its representation of the rights and interests of its members. This is inappropriate and erroneous. Charter rights cannot be given away, and our union will always staunchly defend that right,” Littlewood continued. 

In fact, Charter rights can’t be given away, but people (or unions) can choose not to exercise them, even when doing so is contrary to their immediate interests. Incidentally, teachers in Manitoba gave up their right to strike in 1956 (pre-Charter) in exchange for an arbitration system. Despite this likely now being unconstitutional, it remains part of the regime governing education collective bargaining in that province.

Further in her letter to the CLC president, Littlewood correctly pointed out that most union contracts are secured without a labour disruption. However, presenting the declining incidence of strikes as positive for labour is questionable. It is more accurate to characterize low strike levels as a demonstration of labour’s historic weakness — a weakness made worse by voluntarily proposing not to strike before bargaining has been exhausted. 

In response, Bruske largely walked back her criticism, affirming that it’s not the place of the CLC to “insert itself” into bargaining of affiliate member unions. Public critique — not only from the CLC president but from others as well — had apparently gotten to Littlewood. On September 10, the OSSTF president again took aim at the “experts” questioning the teachers’ unions’ strategy. 

However, despite Littlewood’s claims to the contrary, there is good reason to question the soundness of arbitration in this instance. One doesn’t have to be “interfering” or pontificating from the sidelines to see the glaring pitfalls. 

First, agreeing to arbitration runs the risk of undermining union democracy. When an ostensibly neutral arbitrator imposes a settlement on the parties in collective bargaining, it is “binding.” In other words, no further modifications can be made, and more importantly, union members do not have the opportunity or right to vote on the agreement. Thankfully, OSSTF members are still voting on whether or not to impose this arbitration plan on themselves. 

Second, broaching the arbitration proposal in this way cedes the political terrain to Education Minister Stephen Lecce and the Ford Conservatives. Throughout their tenure in power, the Ontario Progressive Conservative (PC) government has incessantly focused on “keeping kids in class” and attempted to portray any labour disruption in education as an attack on students. By now conceding publicly that an acceptable collective agreement can be reached through arbitration, the union will find it very difficult to later pivot to a strike position. In the event that OSSTF members vote against this proposal, expect the government to double down on their ‘kids in class at any cost’ narrative. 

Why would OSSTF propose this plan in the first place? 

I’m only speculating, but it seems likely that the union believes it to be a particularly opportune moment to test arbitration. By this I mean, not necessarily a good moment in their particular negotiations (by all accounts, bargaining has been predictably difficult with this anti-union government), but rather in terms of the overall climate of wage settlements. 

On this point, the union leadership might technically be correct. With average union wage settlements trending upward slightly, it is likely that Ontario high school teachers would be awarded salary increases above what they have become accustomed to receiving over the past few rounds of bargaining. 

When Bill 124 was declared unconstitutional, many unions with “reopener” clauses who previously had their wages frozen at 1 per cent annually entered arbitration and received noteworthy wage increases. Some of the wage adjustments are using settlements such as the Public Service Alliance of Canada’s national agreement as a precedent. Although that strike settlement wasn’t necessarily awe-inspiring, with annual wage gains over 3 per cent, it was above average. The Ford Government is now appealing the lower court’s Bill 124 decision. Nevertheless, those arbitrated awards are likely shaping OSSTF’s rationale. 

But the teachers’ unions’ logic could prove to be faulty. Does OSSTF believe the level of mobilization among its membership is insufficient to pose a credible strike threat? That seems to be what the plan suggests. Without deep organizing for a strike, arbitration might look like a better option.

The issue, however, is that relying on wage precedents in arbitration essentially free-rides on the past gains of other unions. If average annual union wage settlements are up, it’s because other union members fought for pay hikes and won.

In practice, there are no legislated or standardized guidelines that arbitrators follow when making determinations. Comparable recent union settlements are taken into consideration, but so too are the proposals of the two parties in bargaining at the time they enter into arbitration. 

By openly agreeing to an arbitrated settlement at this early stage, the OSSTF leadership are effectively signaling to the Conservatives to bargain no further than they already have. Any additional concessions the government puts on the table would theoretically only move the arbitrator closer to the union’s position. Labour researchers refer to this as “the narcotic effect.” In short, once arbitration is in the offing, meaningful bargaining grinds to a halt. Each party wants to have their best proposal on the table when bargaining ends. 

We were offered an inside view of exactly this phenomenon during the recent strike of Liquor Mart workers in Manitoba. When a mediator assisting with bargaining between the Manitoba Government and General Employees’ Union (MGEU) and Manitoba Liquor and Lotteries (MBLL) informally suggested arbitration, the employer immediately leaked this to the media and ceased bargaining on wages. The union had to spend several days publicly reiterating that arbitration was not acceptable to them, and that the mediator had never formally recommended it. 

Further, reliance on arbitration can pose risks not only in an immediate round of bargaining but also in future rounds. If relying on binding arbitration becomes a norm, employers will enter each successive round of negotiations even less willing to bargain. If they know they can depend on arbitration each time, why bother tabling meaningful proposals at all? 

Look no further than the rounds of bargaining that took place between the Amalgamated Transit Union and the Toronto Transit Commission during the period when the former’s right to strike had been removed through “essential service” legislation. As the decision that restored TTC workers’ right to strike made clear, the employer failed to meaningfully bargain with the union during those years and instead offered well below average wage increases.  

Perhaps most importantly, forgoing the right to strike demobilizes rank-and-file union members. Arbitration not only removes workers’ ability to exercise democratic control over the final settlement but it also undermines their capacity to shape the struggle throughout the bargaining process — up to and including striking, if necessary. 

There may be instances where arbitration is a necessary and beneficial route for unions. First contract arbitration, for example, can make it easy for workers to secure a first collective agreement against an intransigent employer. In some cases, arbitrators will punish an employer with a significant wage settlement to set an example and discourage bad bargaining.  

That being said, arbitration is no alternative to the strike. There is no technical substitute for the collective power of workers. OSSTF members would be wise to vote this plan down.

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