Monday, August 13, 2012

The Power of First Contract Arbitration


While watching the Olympics, I noticed something over and over again. Those who usually started fast would fade by the end of the race. Those who put themselves in a spot to win, and exerted their energy during a final push, usually came out on top. It's not how you start a race, but the way you finish that counts.

Both the US and Canada try to take a hands-off approach to labor relations allowing the unions and employers to negotiate and bargain freely; hoping for an agreement between the two parties that has the consent of both parties. There is one key difference - several actually, but only one that I am going to talk about here - that completely changes the game between the US and Canada: First Contract Arbitration.

When the unions tried pushing for the Employee Free Choice Act (EFCA) in 2009/2010, they focused their public campaign on card-check. Basically, if an employee signs a union card then it is a vote for a union. Instead as it currently stands, if an employee signs a union card then it is a vote to have a secret ballot election for a union. Basically, the election would go from two-stage elections to a one-stage sign-up.

Interestingly, Ontario had card check and moved to a secret ballot election. Different provinces do it differently, but most in Canada have an election is held only 5 days after turning in the cards, whereas in the US it is a month later at earliest - pending on lawsuits or lack thereof. It is not an anomaly for elections to occur years after the cards were filed. That is changing though...


Anyways... despite the huge public campaign, it all was a giant strategic misstep. The unions focused on how to start the race. Instead the piece of EFCA that the unions really needed was the clause over First Contract Arbitration. The end game is more important than the starting gun.

If the union and employer can't agree on a contract after making a good faith effort, then an arbitrator will be appointed, let both sides plead their case, and then make a binding decision. It guarantees that after a prolonged organizing effort, there will be a light at the end of the tunnel. 

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