First Contract Arbitration: Evidence from British Columbia of the Significance of Mediators' Non-Binding Recommendations
Vipond, Melanie, Labor Law Journal
One of the many problems facing the American labor movement is the fact that only one-half of its newly certified bargaining units are ever able to obtain first collective bargaining agreements (C.B.A's.) The value of third -party assistance in countering this trend has been recognized in the Employee Free Choice Act (EFCA), which proposes bringing in mediators and arbitrators to resolve first-contract disputes.
Currently, with private-sector union-membership levels at a historic low of 7.2 percent, down from a peak in the mid-1950's of between 35 percent and 37 percent, the need for both labor reform with third party assistance is stunning. The most recent legislative proposal, EFCA, provides for interest arbitration in first contract negotiation disputes. Despite obtaining a clear majority in the House of Congress in 2007, the Senate was nine votes short of the 60 votes needed to invoke cloture and prevent a Republican filibuster. EFCA was re-introduced in 2009 but did not pass. Although it is clear that President Obama supports EFCA,1 the 2010 U.S. Mid-term election results made it highly unlikely that EFCA would be re-introduced in the 112th Congress, but if it is, it will likely have to be modified from its current form in order to achieve majority support. However, Congress appears more likely to enact the first contract arbitration provision contained in EFCA than other, more contentious, provisions such as card check. Thus, there is a good chance that any modified version of EFCA will contain first contract arbitration provisions. Furthermore, even if EFCA does not become law in any form, the need and interest for third-party assistance to resolve bargaining disputes particularly in the first-contract context remains strong.
This paper is a study of the unique mediationfocused first-contract model available in British Columbia (B.C.), Canada. The B.C. first contract model has two key goals: (1) to facilitate the achievement of first C.B.A's through voluntarily collective bargaining/mediation; and (2) to repair and foster the collective bargaining relationships. Therefore, the centerpiece of the model is non-binding mediation wherein the issued recommendations regarding the terms of the first C.B.A. can be rejected by either party, but are then accorded considerable deference in any subsequent arbitration or litigation.
Through analysis of data made available by the B.C. Labor Relations Board ("BCLRB") and the parties, and interviews with key participants in the B.C. labor-management community, this study empirically tests whether the B.C. first contract model has achieved its stated goals. The results reveal that the B.C. model is, indeed, effective in obtaining first C.B.A's while avoiding binding arbitration, and in fostering enduring bargaining relationships. Only 12 percent of all parties who accessed the B.C. model resolved their bargaining agreements through binding arbitration. Parties who accepted the mediators' non-binding recommendations were most likely to obtain first C.B.A's (at 97.4 percent) and be in current bargaining relationships (at 82.1 percent). Moreover, the interview data reveal that the B.C. model has obtained considerable approval from all key participants.
Given its success in achieving these goals, the B.C. first contract model merits serious consideration as a viable model for the United States.
Without a C.B.A, a trade union is powerless.2 In the United States, while private-sector employers covered under the National Labor Relations Act3 (NLRA) are obliged to negotiate in good faith with union representatives over the terms and conditions of a first C.B.A,4 there is no corresponding obligation on behalf of employers to reach an agreement.5 This deficiency, in conjunction with the National Labor Relation Board's (NLRB) inability to enforce and issue timely6 and comprehensive remedies for violations of this obligation to bargain in good faith, has been described as the most significant failure of the laws governing unions and collective bargaining in the United States. …