Saturday, April 26, 2008

On the TTC strike

So, the TTC has gone on strike. And, predictably, the Toronto media and Toronto bloggers are predicting the end of the world as we know it; verily, the sky is as sackcloth and ashes and the e'en the firmament beneath our feet trembles with the enormity of what has come to pass. Or some such. Typically, the anti-union crowd is out in force and the cry has gone up to legislate the greedy, mean ol' workers back to their jobs. Here's why, in a nutshell, anti-unionism is stupid and back to work legislation may not be as great as people think. This is a long one, but read it through, as I'm trying to clear up some misconceptions and outright errors (a nicer word than "lies") I'm reading around this morning.

Back to work legislation, to many people's surprise, is not part of the criminal law. (There's a good CBC backgrounder here.) Hence, you can't be arrested for not obeying such a piece of legislation. It is, on its own, completely toothless. It's more a PR thing than anything else: "look! look how we're trying to protect the poor, innocent hoi polloi!" If back to work legislation is defied, then someone has to go to court and get an enforcement order. Which can also be defied. You can't be arrested for breaking an enforcement order. However, if you break an enforcement order, and someone goes again to court to complain about it, then someone -- usually the union leadership -- can be arrested for contempt of court. But, unions have pretty good lawyers, typically, so don't expect the leaders to spend much time in jail before trial.

On the whole, it's a stupid idea. If you have a genuinely pissed-off union -- which is hard to gauge in this case, but since the membership has broken with the negotiating team in a fairly significant way and they struck in such a way that people were left stranded, I expect they are -- they will just flip off the government and keep striking. And there's a number of hoops that would have to be cleared in order to punish them for doing just that. And even then, they may decide the punishment is worth is. All back to work legislation in such a circumstance really accomplishes is causing both sides to dig in their heels and prolong the dispute.

(Aside: and the legislation can often be written in a way that is frankly abusive. When UBC workers were legislated back in ~2000, the legislation was written such that (a) all campus bargaining groups -- including ones that weren't unions, and thus could not legally strike -- were legislated back, and (b) there was a sunset provision which would allow the government, without further consultation in the house, to to indefinitely extend the forced return to work.)

(Second aside: you can also really dick with back to work legislation. For example, in ~2000 when UBC TAs were ordered back, we continued to strike -- but called it a "political protest", which is constitutionally protected under the Charter. Very probably spurious, but a hard argument to beat in a court, which is what they would have had to do in order to force us back.)

Essential service legislation has a similar problem. You can't write a piece of essential service legislation that says no one can strike, ever, under any circumstances at all. (A decent provincial labour board would just toss it as violating the labour code.) Indeed, if you peruse essential service legislation, you'll see that they don't say any such thing. The reason they can't is, at the very least, because it potentially can be read as violating constitutionally-protected freedom of association; and, because it violates most provincial labour acts (I say "most" as I'm not sure about some provinces, not because I think there are some where it would not). There's also legitimate worries about the inherently autocratic nature of such legislation, and the way it favours wealthy and powerful interests.

What the legislation does say, typically, is that a certain level of service must be maintained even in a strike. And that level is usually pretty minimal: what can be demonstrated as reasonably necessary given the needs of the public, and the "needs" must be pretty significant. Inconvenience doesn't count. So, don't expect every bus and subway and streetcar to keep running. Service levels would be reduced in a strike were the TTC an essential service; and many bus routes simply wouldn't run. And even then, unions can sometimes ignore if. The BC Ferry and Marine Workers Union ignored essential service and back to work legislation in 2003, cutting off all ferry service to Vancouver Island. There were consequences, but these were considered by the membership to be reasonable in the circumstances. New York transit workers went off for three days in 2005, despite essential service legislation. And Montreal transit workers cut service down to rush-hour only during a four-day strike in 2007.

There's some other wrinkles as well. Usually, the legislation just designates a sector as an "essential service". When a strike is called, then, the employer and the union leadership have to meet with the labour board and go through a long and elaborate set of investigations to determine what does and does not meet the definition of an "essential service" as stated in the labour code. Then, and only then, will workers be compelled to provide a certain level of service. So, usually, you should expect to see what happened in Montreal: the union will figure out a level of service that puts pressure on the employer, and that will probably pass the "essential service" test, and withdraws to that level. I also suspect -- I have no data at hand, but I'd be surprised if none existed -- that this sort of legislation will prolong strikes rather than shorten them, as the pressure on the employer to settle is reduced.

Generally, calls for back to work legislation and essential service legislation come from people who are opposed to unions, on the spurious grounds that strikes always hurt the public. These grounds are spurious because the argument commits a basic fallacy of irrelevance. A worker doing a public service job has no obligations to the public. The worker has obligations to their employer, and their employer has obligations to the public. Hence, the employer creates employer-centred obligations on the worker which will serve the employer's ends. For example, a Wal-Mart cashier is obligated to scan and bag a customer's purchases because their employer requires them to do so as a condition of employment. People lose sight of this relationship very quickly because, except in rare cases, it's the workers that they have immediate contact with. You never see TTC management, but only TTC workers, and hence there is a tendency to -- erroneously -- infer that TTC workers have a direct obligation to the public.

The reason this inference is a disaster, and not just a mistake, is that it creates the false impression that unionized workers are somehow letting their direct obligations lapse if they strike. That is, by withdrawing the service they provide to the public, the public considers them blameworthy. This is an error. The blame genuinely rests with the service provider -- in this case, the TTC itself. The TTC is required to provide transit services to the people of Toronto. If they are unable to come to an agreement with their workers on how these services will be provided, then their workers can withdraw their work -- leaving the TTC unable to fulfill its obligations.

So, really, the public is being attacked by the TTC management, who have not successfully negotiated a contract to provide the service they are obligated to provide to the public. The TTC workers are doing no wrong by withdrawing their services from the TTC.

Of course, this argument will persuade very few, for a couple of reasons. First, people are really wedded to this idea that unionized workers who work in the public service have some direct obligation to the public. To them, all I can do is point to the Wal-Mart cashier. If the cashier refuses to scan and bag purchases, or does it poorly, then this is a matter to be taken up with management, and management will take it up with the cashier. The cashier is clearly not directly obligated to the customer. The same applies to TTC workers: they have no direct obligations to TTC riders.

Second, people who espouse anti-union sentiment are very often driven by that toxic combination of jealousy and fear. They fear the consequences of unionizing themselves, but are jealous of the greater pay, benefits, job protection, etc. enjoyed by unionized workers. To them, I can only say: get the fuck over yourselves.

All that said, what should McGuinty do? Sort of the big question right now. He shouldn't legislate the workers back to work, at least not right now. A strike that's less than 24 hours old is not sufficiently disruptive for this maneuver; furthermore, as said above, it's not really an effective maneuever. Instead, he should be considering one of two options.

Option 1: cooling-off legislation. That is, he should legislate workers back, but with a very tight timeline. Say, a month. This insulates the public from the failures at the bargaining table. He should also compel both bargaining sides back to the table, with a mediator, after some time of comparative peace -- say, two weeks. This will extend the possibility of a negotiated settlement.

Option 2: mandatory binding arbitration. That is, he should legislate such that both sides are compelled to present their final deals to an arbitrator, who will create a binding agreement. This kind of tactic should generally be reserved for when talks have irreperably broken down, and I'm not convinced they have. After all, striking is part of collective bargaining, as unpleasant as it may be. (Aside: does anyone really think it's fun for the union membership to walk around in circles? Especially the 35% that voted for the deal?) If it does reach that point, though, then McGuinty can order that a contract be made and, rather than taking the heat upon himself for deciding what that deal should be, he can use the mechanisms of binding arbitration to get a third-party to, in essence, split the difference between the two sides. That is, the arbitrator will take the final offers from both and walk a middle path between them.

So, overall, the points are these.
  1. Back to work legislation is always a bad and foolish idea.
  2. Essential service legislation is no bulwark against strikes.
  3. Anti-union sentiment is based on a bad inference (i.e., workers who serve the public have direct obligations to the public) and, probably, jealousy and fear.
  4. McGuinty has better options available than trying to (possibly fruitlessly) legislate transit workers back.


Saskboy said...

There's "essential services" legislation coming shortly in Saskatchewan. The SUN nurses union is looking to strike before it comes into law, is my guess. Doesn't matter, they've always provided essential services during a strike anyway, it's just that we have a government with people who have on the 1991 tape joked they'd send letter bombs to union people.

ADHR said...

Yeah, I'd heard about that. Again, it looks like PR on the part of the Sask. government. Nurses -- and medical professionals generally -- don't like to completely withdraw services if they can possibly help it. So, any essential service legislation won't seriously impact on their strike activities. Unless the Sask. labour board is in the government's pocket; in which case, I'd expect the strike to continue while the mess wended its way through the courts.

They really said they'd send letter bombs to people in unions? It's that kind of climate that encourages, rather than discourages, union militancy.

stageleft said...

I am alternatively amused and frustrated by what people decide is essential, with the (almost) immediate leap to "rights".

There is no right to not being inconvenienced and there is no right to public transit, full stop, end of story.

ADHR said...

Agreed. It's worth noting, though, that while there could be such a thing as a right to transit, with appropriate changes in law, there cannot be a right not to be inconvenienced. Inconvenience is part and parcel of living with other people.

The comments being reported from the public in today's Star are a little disturbing. While I know they're born of frustration, I still find it worrying when people say, in all seriousness, that the minority's interests should be trampled in favour of the convenience of the majority.