Strikes/Lockouts vs. Interest Arbitration
There are many reasons to prefer interest arbitration to the strike/lockout option.
Apart from ethical concerns about striking or even threatening to strike—which are
very important to some members—here are some pragmatic reasons to prefer
interest arbitration.
1. Higher salary settlements. In the public meeting with the FA’s lawyer, Alan
Black, a UVic FA member asked him for examples of strikes by public-sector unions
that had led to settlements exceeding the BC Public Sector Employers’ Council
(PSEC) limit.1 Black’s answer was blunt: It hasn’t ever happened. On the other hand,
all three BC universities with interest arbitration (UNBC, UBC, and UVic) achieved
monetary benefits exceeding the PSEC mandate in the last round of bargaining.
The reason for this outcome is that the administration is bound by PSEC in its
negotiations with UVic FA and cannot make offers that exceed the PSEC mandate,
even if they’d like to.2 The arbitrator in interest arbitration, however, is not bound
by the same financial constraint (it is only one of the issues he/she takes into
account) and thus has the opportunity to award higher salary increases. For
example, in UNBC’s most recent contract, the arbitrator decided the need for salary
catch-up with comparator institutions argued for exceeding the PSEC mandate.
Is the strike option a credible bargaining tool? Judging from secret PSEC documents
that have become available to the public, the provincial government would rather
deal with unions that have the strike option than those that have interest arbitration
(IA).3 Why? Because the BC government believes that the strike option works more
in its favour than IA does. In fact, the government recently asked UBC’s
administration to ask UBCFA to give up IA in exchange for the strike option. Nancy
Langton, the UBCFA President, told us that UBC’s administration “laughed” at this
request and told PSEC that this was a nonstarter because there was nothing UBC
could afford to offer UBCFA that would convince them to give up IA.4
Some have argued that “a negotiated settlement is always better than an imposed
settlement.” That might be true in an unconstrained world, but under the peculiar
Arbitration and the Right to Strike: Legal Aspects, held on March 20, 2014. For background on PSEC
see http://thetyee.ca/News/2012/11/07/Union-Raises-Manual/
2 See Employer’s Guide to the 2012 Cooperative Gains Mandate
3 From the Employer’s Guide to the 2012 Cooperative Gains Mandate, page 16
1
Langton was one of the panelists on the panel on arbitration and the right to strike organized by
UVic FA. The panel was held on March 13, 2014.
4
1
institutional constraints facing public sector employees in BC, this statement is
transparently false. An imposed settlement can exceed the PSEC mandate, and hence
be superior to a negotiated settlement, as it clearly was in the cases of UBC, UNBC,
and UVic in the last contract round.
2. A bargaining tool for non-monetary gains. Much has been made of the
argument that the strike option is needed to gain negotiating leverage over nonmonetary benefits commonly referred to as “language.” It is true that in their
reports, arbitrators have voiced the opinion that such issues are best left to the
parties themselves to negotiate.5 However, this does not mean that IA would leave
the UVic FA without leverage in negotiating language with the administration. For
example, Nancy Langton, the president of UBCFA, told us in the panel on arbitration
and strikes that in one bargaining round she said to her team, “That’s it, we’re going
to interest arbitration.” This was overheard by the administration, which then
signaled willingness to compromise on language if UBCFA would agree not to ask to
enter into IA. It needs to be understood that even if language improvements for the
membership do not result in monetary benefits, such changes usually incur costs on
the administration. Hence it should come as no surprise that if IA gives us a credible
threat to achieve salary gains above the PSEC mandate, we can use that threat to
leverage concessions over language at the negotiating table, just like UBCFA has
done.
Related to Langton’s statement, Alan Black, the lawyer for UVic FA and UBCFA told
us that when UBCFA successfully negotiated over language without needing the
strike option, UBCFA looked at the framework agreement of the University of
Toronto for guidance in including new language about workload. This is noteworthy
because the University of Toronto faculty—like UBCFA—have the right to interest
arbitration. Moreover, UTFA is not even unionized.6 These facts bring into question
claims that the only way to gain traction on language issues is to threaten a strike.
3. Evidence and transparency. Putting together a case for arbitration requires
each party to put forth compelling arguments for its case to a third party. It is also
more transparent than negotiations behind closed doors, since these documents
become publicly available. A Mathematics professor at UBC and member of the UBC
Board of Governors has the following blog entry about IA at UBC: “The most obvious
reason for why University Administrations should avoid leaving the bargaining
process to fester until arbitration, is because the latter is a highly asymmetrical
See, for example, the arbitrator’s report for UBCFA in the 2012 bargaining round.
the University of Toronto Faculty Association web site: “The role of the Association in
representing faculty and librarians is largely prescribed in a Memorandum of Agreement between
UTFA and the Governing Council of the University of Toronto. The MoA [equivalent to our current
Framework Agreement] dates to the late 1970s and was developed explicitly as an alternative to
union certification, though the latter is an option that remains open to faculty and librarians should
they choose to exercise it. The MoA features a limited scope collective bargaining process that deals
with minimum salary, benefit and pension provisions together with workload.”
5
6 From
2
process. Only one party is really under examination: The Administration, which defacto becomes subjected to a scrutiny that is the equivalent of a highly publicized
audit, a public colonoscopy if you will.” 7
4. The strike option is financially costly for members. Some have suggested that
the costs of IA are high. In fact, even if we never go on strike, maintaining the strike
option would likely cost us far more than opting for the right to IA.
Most faculty unions in Canada that maintain the strike option join the CAUT
Defence Fund, which pays strike pay in the event of a strike and provides interestfree loans to striking unions. CAUT states, “Strike benefits are currently set at $84
per calendar day,8 and payments start on the 4th calendar day of the strike or lockout.” Also from CAUT: “Each faculty union pays monthly dues for each dues-paying
member in its bargaining unit or units. The level of dues is changed from time to
time by the Board of Trustees. It is currently set at [$5.25] per person per month
(non-taxable), a figure that has not risen since the 1990s.”9 So our annual fees to
CAUT’s Defence Fund would be (860 members)*($5.25/month)*(12 months) =
$50,400 per year, even if we never went on strike.
By contrast, we only incur the costs of IA when we enter into IA, which doesn’t
happen in most bargaining rounds. When UVic FA entered IA in the last round, it
was the first time in 10 years that we’d entered IA. The same is true of UBCFA in the
last round. Even if we assumed a worst-case scenario where we enter into IA in
every single bargaining round (roughly every two years), the money we would save
on CAUT Defence Fund fees would leave $100,800 in our coffers to put towards
covering the costs of IA, and IA would yield higher compensation settlements that
would more than cover any additional costs of IA. For example in the last bargaining
round IA produced an extra $2000 for each member beyond the PSEC limit, or $1.7
million that we wouldn’t have received if we’d had the strike option instead of IA.
If, more realistically, we entered IA every 10 years—and there’s no reason to expect
the frequency of entering IA to rise with unionizing—we would accumulate over
half a million dollars in savings on CAUT Defence Fund fees each decade, easily
covering the occasional costs of IA. These savings could be refunded to members,
annual dues could be lowered, or the savings could be used to finance other union
activities, such as better managing grievance cases with more professional staff.
Nassif Ghoussoub, Professor of Mathematics, and an elected member of the Board of Governors at
UBC in his blog, http://nghoussoub.com
8 Note that $84 is equivalent to the average daily pay of someone making $30,660 per year.
9 The number reported in the 2013 pdf document is $5.00. However, in the report from Fall 2012, the
following is stated, “On the recommendation of the P & P Committee the strike pay will increase from
$80 per day per member to $84, which will trigger a dues increase from $5.00 to $5.25 as of February
2013.” We assume, therefore, that $5.00 was a typo. There is also an additional initiation fee. From
CAUT Defence Fund: “During the first year of membership, a union is required to pay a $30 initiation
fee for every dues-paying member in its bargaining unit or units. The initiation fee is reduced to $20
for unions which join the Fund within one year of becoming certified. Such initiation fees are paid out
in equal monthly installments over the first year of membership.”
7
3
Note that in this analysis we have stacked the deck against Interest Arbitration in
favour of retaining the strike option. We have ignored the one-time $17,000 fee that
we would have to pay to join the CAUT Defence Fund. By assuming we never go on
strike, we have not counted the costs associated with actually going on strike or
being locked out. While strike/lockout is a low probability event, in the event that it
happened a strike or lockout would cost the membership approximately $163,000 a
day just in lost pre-tax salary beyond what would be covered by the CAUT Defence
Fund after the third day of strike. 10 For the first three days of a strike the cost per
day in lost salary would be $235,640. We also haven’t addressed the significant
additional legal and PR expenses associated with preparing for a strike. If we want
to maintain a credible strike threat in each round of contract negotiations, we would
have to keep the PR and legal fires stoked during each round, and that costs money.
Those costs, of course, escalate dramatically if we actually vote to strike—even if we
never take strike action—and escalate yet further if we do take strike action. If we
opted for IA instead of strike/lockout, we would face none of those costs in years
when we didn’t enter IA.
5. The strike option (even if we never strike) is personally costly for members.
Union representatives who spoke to us at the IA vs. strike panel discussion on March
13 talked about agreements in the eleventh hour,11 having to be prepared for a
strike at all times, getting (and keeping) the base riled up, and so forth. Retaining the
strike threat also hands the administration the right to lock us out if they feel we are
being intransigent. Thus, rather than giving us more control, opting for
strike/lockout may give us less. Lockouts of faculty can involve suspending faculty
access to university email, internet, and other facilities, as recently occurred at
University of New Brunswick. Having to live with the threat of a strike or lockout in
each round of contract negotiations imposes high personal/psychological costs on
the membership. It could also be very divisive. While IA does impose a high personal
cost on the Negotiating Team, there are comparatively straightforward and
inexpensive ways of compensating for these (moral support and advice from other
unions, assistance from paid experts, etc.). Keeping 860 members fully apprised of
the costs and benefits of striking in each contract negotiation (not to mention the
personal costs to all 860 members of keeping themselves informed of the issues and
engaging in arguments with colleagues about whether to strike) takes away time
and energy that could otherwise be devoted to our work and personal lives. Why
put ourselves in a position where we have to go through this in every round of
bargaining when a better method for seeking gains at the negotiating table is
available?
For this calculation we assume the average FA member makes $100,000 a year. We divide this by
365 to arrive at an average daily salary of $274, and subtract from this the CAUT Defence Fund
benefit of $84, to arrive at a daily per-member salary loss of $190. Multiplying this by 860 members
gives us a daily membership-wide salary loss from strike of approximately $163,000.
11 See, for example, CAUT’s Defence Fund reports to get a sense of how frequently strike votes are
taken. http://defencefund.caut.ca/english/Reports/default.htm
10
4
6. The threat of a strike is only as effective as the membership’s collective
willingness to actually go on strike. Alan Black, lawyer for UVic FA and UBCFA,
surmised that one reason UBCFA does not want the strike option is that their
membership could not be expected to back a strike vote with enough support to
make striking a credible threat. Until the UVic FA surveys its membership in a
careful, unbiased way about its attitudes toward striking, we can’t be sure we’d ever
have enough support for striking to convert the threat of a strike into significant
leverage at the negotiating table. A non-credible threat buys us nothing in
negotiations, so even if you personally are willing to go on strike, the strike option is
not your best choice of leverage if your colleagues aren’t sufficiently keen to
strike. Lloyd Waugh, the Faculty Association Chief Negotiator of University of New
Brunswick’s faculty union said in the March 13 panel that a faculty association
needs at least 80% strike support to even consider going on strike. Would we have
that level of support at UVic? More than 1 in 3 UVic FA members voted against
unionizing, and one of the key reasons people gave for opposing unionization was
that they did not want to go on strike. Some of those who came out publicly in
favour of certification have also stated their preference for IA over the strike option.
Recommendation: In negotiations, the position taken by the FA should be that
since we have interest arbitration in our current Framework Agreement, we want to
maintain it. We shouldn’t expect much in exchange for retaining interest arbitration
over the strike/lockout option, because interest arbitration is a superior option. It is
likely that both PSEC and the administration would prefer that we choose the strike
option, since that puts us in a weaker bargaining position.
Respectfully submitted,
Elisabeth Gugl and Martin Farnham, Department of Economics
5
References:
Arbitrator’s report in UBCFA bargaining round 2012:
http://www.facultyassociation.ubc.ca/docs/bargaining2012_arbitratoraward.pdf
Employer’s Guide to 2012 Cooperative Gains Mandate available here:
http://thetyee.ca/Documents/2012/11/06/SKMBT_60012110116500.pdf
CAUT Defence Fund:
http://defencefund.caut.ca/files/What%20is%20the%20Defence%20Fund-201307-18-EN.pdf
CAUT’s Defence Fund Reports:
http://defencefund.caut.ca/english/Reports/default.htm
DEFENCE FUND PRESIDENT'S REPORT TO CAUT COUNCIL Fall 2012:
http://defencefund.caut.ca/english/Reports/Fall2012.htm
Employer’s Guide to 2012 Cooperative Gains Mandate available here:
http://thetyee.ca/Documents/2012/11/06/SKMBT_60012110116500.pdf
Ghoussoub, N: http://nghoussoub.com/2013/05/27/salary-arbitration-is-the-ubcadministration-putting-its-respectable-legacy-on-the-line/
University of Toronto Faculty Association: Memorandum of Agreement.
http://www.utfa.org/content/memorandum-agreement
6