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Myths & Evidence:
    EFCA v. Canadian First Contract
       Arbitration Experience
Excerpts from presentation to 47th CIRA Annual Congress / International
            CRIMT Conference, Quebec City, QC, June 2010


            Sara Slinn, Osgoode Hall Law School
       Richard W. Hurd, ILR School, Cornell University
First Contract Arbitration: Four Models & Two
                    Approaches

Exceptional Remedy”                             Quebec
   - no prospect for settlement in reasonable   Federal
time
                                                Newfoundland
‘Automatic Access‘                              Manitoba
     - Deadlines
‘No Fault‘                                      Ontario
    - No ULP – but discrete reasons             Saskatchewan
‘Mediation Intensive‘                           British Columbia
    - not remedy; support coll barg process
First Contract Arbitration: Four Models

Model                   Key characteristic            Used in
“Exceptional Remedy”    Available when no             •Quebec
                        prospect of settlement in a   •Federal jurisdiction
                        reasonable time               •Newfoundland & Labrador
“Automatic Access”      Available when deadlines      Manitoba
                        pass
“No Fault”              Available when bargaining     •Ontario
                        fails due to one or more      •Saskatchewan
                        statutorily specified
                        reasons
“Mediation Intensive”   Not regarded as a remedy;     British Columbia
                        intended to support the
                        collective bargaining
                        process
Development of FCA Models
      1974          1978          1982    1984 1985 1986            1993 1994 1995 ... Prese
                                                                                       nt

                                                                     Mediation
BC     Exceptional Remedy
                                                                    Intensive

QU                   Exceptional Remedy

Fed                  Exceptional Remedy

                                  Except.
MB                                Remedy
                                          Automatic Access


NF                                             Exceptional Remedy


ON                                                  No-Fault


SK                                                                        No-Fault
First Contract Arbitration
Jurisdiction                               Year in Force
British Columbia                               1974
Quebec                                         1978
Federal                                        1978
Manitoba                                       1982
Newfoundland                                   1985
Ontario                                        1986
Saskatchewan                                   1994
Prince Edward Island                          1994*
*Provision passed, but has never been brought into force
Four Models:

Detailed Summaries of FC Legislation
   in Representative Jurisdictions
British Columbia: “Mediation Intensive”
Apply To      Associate chair of Mediation Division.

Screens       Yes (Associate Chair Mediation Division)

Pre-          Certification granted;
Conditions    Parties have collectively bargained and failed to reach an agreement; and,
              Successful strike vote

Pre-          Mediation
Arbitration
Processes
Issues FC     Arbitrator or Board

Trigger for   Recommendation of mediator and/ or Associate Chair if mediation fails mediation
Imposed FC
              If no FC within 20 d of mediator appointment: mediator report to the associate
              chair recommending either or both:
              (a) the terms of the first collective agreement for consideration by the parties;
              (b) a process for concluding the first collective agreement including one or more of :
                    (i) mediation / arbitration (result in imposed FC if no agreement);
                    (ii) arbitrator or Board impose FC.
                    (iii) allow work stoppage.
              If no agreement w/in 20 d Associate Chair direction under (b)
British Columbia: “Mediation Intensive”

                Factors to decide whether to refer to FC arbitration (non-exhaustive):
                  (a) bad faith or surface bargaining;
                  (b) employer conduct shows refusal to recognize the union;
                  (c) party adopts uncompromising bargaining position without reasonable
                justification;
                  (d) party fails to make reasonable or expeditious efforts to conclude a CA;
                  (e) unrealistic demands or expectations arising from either the intentional conduct of
                a party or from their inexperience;
                  (f) a bitter and protracted dispute unlikely to be voluntarily settled.
Decertification Not specified.
treatment
Work stoppages Prohibited once a FCA application is filed, unless mediator or associate chair authorises.

Considerations Guidelines for arbitrators to set FCA terms:
in setting FC  1. no breakthrough or innovative clauses;
               2. Employ objective criteria (e.g. comparable terms and conditions paid to similar
                  employees performing similar work);
               3. Must be internal consistency and equity amongst employees;
               4. Employer’s financial state, if sufficient evidence, a critical factor;
               5. The economic and market conditions of the sector or industry in which the employer
                  competes must be considered (Yarrow Lodge, 1993).
Manitoba: “Automatic Access”
Apply To            Board
Screens             No
Pre-Conditions      Appointed conciliator has notified Board or 120 d since appointment
                    90 d since certification (and any extension periods)
Pre-Arbitration     Conciliation
Processes
Issues FC           Arbitrator or if parties refuse to select an arbitrator, then Board
Trigger for         10d for parties to elect arbitration:
Imposed FC          -60 d from date parties notified the Bd of election for arbitrator award

                    If not elect arbitration:
                    - If no agreement within 60 d of FC application, then Bd has 3d to impose a first contract,
                    OR decline to make an award if opinion that might agree within 30d alone or with
                    conciliation officer.
                    - If no agreement within 30d, then Bd issues FC within 30 days

FC Duration         1 year
Decertification     Not specified.
treatment
Work stoppages      Must terminate when a FCA application filed.
Considerations in Present evidence and make representations to the Board or arbitrator
setting FC        Consider negotiated terms and conditions for comparable employment
                  Consider other matters it considers “will assist in arriving at provisions of a first collective
                  agreement …which are fair and reasonable in the circumstances”
                  Can agree to amend FC in writing
Quebec: “Exceptional Remedy”
Apply To              Minister
Screens               Yes (Ministerial discretion)

Pre-Conditions        Exhaust conciliation

Pre-Arbitration       Conciliation; Conciliation officer may continue to assist the parties even after FCA
Processes             application filed.

Issues FC             Arbitrator (or panel including assessors)

Trigger for Imposed   Minister’s discretion to send to arbitrator
FC                    Arbitrator must impose a FC where opinion parties unlikely to reach a CA within
                      “reasonable time”.

FC Duration           1-3 years
Decertification       Not specified.
treatment
Work stoppages        Must end if and when arbitrator announces necessary to impose FC
Considerations in     Parties may agree to amend FC terms
setting FC
                      Arbitrators must decide “according to equity and good conscience”
                      May consider “conditions of employment that prevail in similar undertakings or similar
                      circumstances and the conditions of employment that are applicable to the other
                      employees of the undertaking”
                      Parties may agree, at any time, on any of the issues in dispute, and any such agreed
                      issues are to be included, without amendment, in FC
Ontario: “No-Fault”
Apply To          Board
Screens           Yes (Board)
Pre-Conditions    (1) parties unable to effect a collective agreement; AND (2) MOL either issued a notice that
                  it is not considered advisable to appoint a conciliation board or has released conciliation
                  board report
Pre-Arbitration   Conciliation exhausted
Processes         Ministry may appoint a mediator to assist the parties

Issues FC         Board of Arbitration OR LRB if parties agree within seven days of Board’s direction
Trigger for       Two-steps: (1) Find an obligation to bargain and, in totality of circumstances, the process of
Imposed FC        collective bargaining has been “unsuccessful`` (2) Failure due to one or more of: employer’s
                  refusal to recognize the union’s bargaining authority; uncompromising nature of any
                  bargaining position adopted by the respondent without reasonable justification;
                  respondent’s failure to make reasonable or expeditious efforts to conclude a collective
                  agreement; any other reason the Board considers relevant.
FC Duration       Two years
Decertification   Priority if filed before FC application decided.
treatment

Work stoppages    Prohibited where Board has directed FC arbitration.

Considerations in Must accept, without amendment, matters parties agree to in writing.
setting FC

                  Any FC term except length, may be retroactive to a date not earlier than date of notice to
                  bargain.

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First Contract Arbitration slideshow

  • 1. Myths & Evidence: EFCA v. Canadian First Contract Arbitration Experience Excerpts from presentation to 47th CIRA Annual Congress / International CRIMT Conference, Quebec City, QC, June 2010 Sara Slinn, Osgoode Hall Law School Richard W. Hurd, ILR School, Cornell University
  • 2. First Contract Arbitration: Four Models & Two Approaches Exceptional Remedy” Quebec - no prospect for settlement in reasonable Federal time Newfoundland ‘Automatic Access‘ Manitoba - Deadlines ‘No Fault‘ Ontario - No ULP – but discrete reasons Saskatchewan ‘Mediation Intensive‘ British Columbia - not remedy; support coll barg process
  • 3. First Contract Arbitration: Four Models Model Key characteristic Used in “Exceptional Remedy” Available when no •Quebec prospect of settlement in a •Federal jurisdiction reasonable time •Newfoundland & Labrador “Automatic Access” Available when deadlines Manitoba pass “No Fault” Available when bargaining •Ontario fails due to one or more •Saskatchewan statutorily specified reasons “Mediation Intensive” Not regarded as a remedy; British Columbia intended to support the collective bargaining process
  • 4. Development of FCA Models 1974 1978 1982 1984 1985 1986 1993 1994 1995 ... Prese nt Mediation BC Exceptional Remedy Intensive QU Exceptional Remedy Fed Exceptional Remedy Except. MB Remedy Automatic Access NF Exceptional Remedy ON No-Fault SK No-Fault
  • 5. First Contract Arbitration Jurisdiction Year in Force British Columbia 1974 Quebec 1978 Federal 1978 Manitoba 1982 Newfoundland 1985 Ontario 1986 Saskatchewan 1994 Prince Edward Island 1994* *Provision passed, but has never been brought into force
  • 6. Four Models: Detailed Summaries of FC Legislation in Representative Jurisdictions
  • 7. British Columbia: “Mediation Intensive” Apply To Associate chair of Mediation Division. Screens Yes (Associate Chair Mediation Division) Pre- Certification granted; Conditions Parties have collectively bargained and failed to reach an agreement; and, Successful strike vote Pre- Mediation Arbitration Processes Issues FC Arbitrator or Board Trigger for Recommendation of mediator and/ or Associate Chair if mediation fails mediation Imposed FC If no FC within 20 d of mediator appointment: mediator report to the associate chair recommending either or both: (a) the terms of the first collective agreement for consideration by the parties; (b) a process for concluding the first collective agreement including one or more of : (i) mediation / arbitration (result in imposed FC if no agreement); (ii) arbitrator or Board impose FC. (iii) allow work stoppage. If no agreement w/in 20 d Associate Chair direction under (b)
  • 8. British Columbia: “Mediation Intensive” Factors to decide whether to refer to FC arbitration (non-exhaustive): (a) bad faith or surface bargaining; (b) employer conduct shows refusal to recognize the union; (c) party adopts uncompromising bargaining position without reasonable justification; (d) party fails to make reasonable or expeditious efforts to conclude a CA; (e) unrealistic demands or expectations arising from either the intentional conduct of a party or from their inexperience; (f) a bitter and protracted dispute unlikely to be voluntarily settled. Decertification Not specified. treatment Work stoppages Prohibited once a FCA application is filed, unless mediator or associate chair authorises. Considerations Guidelines for arbitrators to set FCA terms: in setting FC 1. no breakthrough or innovative clauses; 2. Employ objective criteria (e.g. comparable terms and conditions paid to similar employees performing similar work); 3. Must be internal consistency and equity amongst employees; 4. Employer’s financial state, if sufficient evidence, a critical factor; 5. The economic and market conditions of the sector or industry in which the employer competes must be considered (Yarrow Lodge, 1993).
  • 9. Manitoba: “Automatic Access” Apply To Board Screens No Pre-Conditions Appointed conciliator has notified Board or 120 d since appointment 90 d since certification (and any extension periods) Pre-Arbitration Conciliation Processes Issues FC Arbitrator or if parties refuse to select an arbitrator, then Board Trigger for 10d for parties to elect arbitration: Imposed FC -60 d from date parties notified the Bd of election for arbitrator award If not elect arbitration: - If no agreement within 60 d of FC application, then Bd has 3d to impose a first contract, OR decline to make an award if opinion that might agree within 30d alone or with conciliation officer. - If no agreement within 30d, then Bd issues FC within 30 days FC Duration 1 year Decertification Not specified. treatment Work stoppages Must terminate when a FCA application filed. Considerations in Present evidence and make representations to the Board or arbitrator setting FC Consider negotiated terms and conditions for comparable employment Consider other matters it considers “will assist in arriving at provisions of a first collective agreement …which are fair and reasonable in the circumstances” Can agree to amend FC in writing
  • 10. Quebec: “Exceptional Remedy” Apply To Minister Screens Yes (Ministerial discretion) Pre-Conditions Exhaust conciliation Pre-Arbitration Conciliation; Conciliation officer may continue to assist the parties even after FCA Processes application filed. Issues FC Arbitrator (or panel including assessors) Trigger for Imposed Minister’s discretion to send to arbitrator FC Arbitrator must impose a FC where opinion parties unlikely to reach a CA within “reasonable time”. FC Duration 1-3 years Decertification Not specified. treatment Work stoppages Must end if and when arbitrator announces necessary to impose FC Considerations in Parties may agree to amend FC terms setting FC Arbitrators must decide “according to equity and good conscience” May consider “conditions of employment that prevail in similar undertakings or similar circumstances and the conditions of employment that are applicable to the other employees of the undertaking” Parties may agree, at any time, on any of the issues in dispute, and any such agreed issues are to be included, without amendment, in FC
  • 11. Ontario: “No-Fault” Apply To Board Screens Yes (Board) Pre-Conditions (1) parties unable to effect a collective agreement; AND (2) MOL either issued a notice that it is not considered advisable to appoint a conciliation board or has released conciliation board report Pre-Arbitration Conciliation exhausted Processes Ministry may appoint a mediator to assist the parties Issues FC Board of Arbitration OR LRB if parties agree within seven days of Board’s direction Trigger for Two-steps: (1) Find an obligation to bargain and, in totality of circumstances, the process of Imposed FC collective bargaining has been “unsuccessful`` (2) Failure due to one or more of: employer’s refusal to recognize the union’s bargaining authority; uncompromising nature of any bargaining position adopted by the respondent without reasonable justification; respondent’s failure to make reasonable or expeditious efforts to conclude a collective agreement; any other reason the Board considers relevant. FC Duration Two years Decertification Priority if filed before FC application decided. treatment Work stoppages Prohibited where Board has directed FC arbitration. Considerations in Must accept, without amendment, matters parties agree to in writing. setting FC Any FC term except length, may be retroactive to a date not earlier than date of notice to bargain.