Sunday 12 October 2014

Saskatoon Transit Lockout: What's at Stake (and what isn't) in the ATU LRB application

My previous (and first-ever!) post on this blog talked about the Saskatoon Transit lockout, and why the Amalgamated Transit Union - which represents the City of Saskatoon's transit workers - was, and will be again, arguing before the Labour Relations Board that the lockout was illegal. Needless to say, labour nerd that I am, I'm awaiting the Labour Relations Board's decision on the application with bated breath. But here's the bad news.

Bad news the first: we probably won't get the LRB decision on Tuesday. The hearing of the ATU application is set to be argued on Tuesday, Oct. 14, and Wednesday, Oct. 15. It's likely argument will go through to Wednesday, and even then, the LRB may not give its decision that day. That said, I suspect the Board will render its decision and issue an Order as soon as it can (as it did with the interim Order of Sept. 26). The Labour Relations Board hasn't hesitated to act swiftly when workers or unions engage in illegal strike action. One would assume that they would act equally swiftly to shut down an illegal lockout, if they decide in favour of the Union.

But - sadly - we probably won't see the written reasons for that decision for some time after that. Which is really only an issue for law wonks like myself (sigh) - and of course for the losing side, who might decide to apply for judicial review. 

[There's no right of appeal, as such, from a decision of the LRB. But our Court of Queen's Bench retains jurisdiction to review Board decisions based on principles of administrative law. But that's a whole 'nother kettle of fish. Point is, if one party's dissatisfied with the result and they think it's worth trying to get the Board's decision overturned, then they do have recourse to the Courts and litigation may continue.] 

Bad news the second: As I mentioned in my previous post, this decision won't, in itself, end the dispute between the parties. A fresh lockout - or a strike by ATU - may commence. And the application, needless to say, won't say anything about the merits of each side's position in bargaining generally. In my view, it's not really relevant to this application whether the City misrepresented the state of the pension fund (as the ATU and, now, CUPE's national office, allege); nor is it relevant whether the ATU's wage demands are reasonable. This application is really only concerned with whether the City's lockout notice was legal.

[CUPE National's allegations about the City and the pension plan are here. I don't pretend to know the truth of the matter.]

That's not to say the application is meaningless. In fact, it has the potential to have a significant impact on ongoing bargaining. 

On the one hand, the ATU has a lot riding on this application. They've got a strong case, in my view, but few things are certain in litigation and this isn't a guaranteed win for the Union. It's possible the LRB may yet find that the purpose and intent behind The Saskatchewan Employment Act requires a more restrictive reading of s. 6-62(1)(l) (which I summarized last time) than the statute's plain language would suggest. If the LRB finds that the lockout notice was legal, that can't help but take wind out of the ATU's sails, both with the public and with its members. 

On the other hand, the City has a lot riding on this application, too - perhaps more than the Union. If the ATU is successful, the City is almost certainly going to be on the hook for almost a month of back pay (from the date of the lockout - September 20th - to the date of the Order). That has the potential to strengthen the Union's position quite dramatically, I'd think. ATU members have been off work for almost a month and some of them will no doubt be starting to feel the financial pinch - they've been subsisting on strike pay from their Union, and strike pay is usually a small fraction of a worker's regular wages. But if the ATU's application is successful, those members will potentially have almost a month's pay coming to them. Even if they're subsequently locked out again, in some ways it'll be a blank slate - the City's economic pressure to date wasted, which will no doubt irritate even those city residents who are sympathetic to the City in this dispute.

And this is just regarding the lockout. The Board has broad powers to grant remedies, and it has already enjoined the City from doing any further unilateral changes to its pension plan. What if the LRB determines that the City's unilateral changes to the pension plan were also illegal, for the same reasons?

[An aside: I was asked at one point whether the ATU's application is "just a bargaining tactic." To this I will say two things: one, a Union or an Employer is perfectly entitled to rely upon its legal rights, and the protections of the SEA, regardless of motivation - just as the City would have been had the ATU gone on strike before the outstanding Unfair Labour Practice application had been dealt with. And second, and perhaps more importantly - the City's lockout, in itself, is a bargaining tactic. Indeed, the lockout (and the strike) is the quintessential bargaining tactic, where one side attempts to use economic force and social pressure to get its way. So this application may well be a bargaining tactic but that's because at this point, almost everything is.]

But both sides should be nervous about public opinion. Public sector disputes are different from private sector disputes in that the profitability of the employer isn't really at stake in the public sector. As such, the court of public opinion is the main pressure point. And this application, in itself, isn't going to bring a final resolution to the ongoing dispute between the City and the ATU. The ongoing struggle for public support will continue.

Professor Dionne Pohler, of the Johnson-Shoyama School of Public Policy at the U of S, suggested early in the lockout that (and here I'm paraphrasing) both sides could find a way to meet in the middle and come to a satisfactory resolution. Prof. Pohler also notes, however, that public pressure at that point (Sept. 23) had not risen to the level where it would have an impact on the parties. It's now three weeks later and public pressure is mounting. At risk of being a bit Pollyanna-ish, here's hoping that regardless of which side prevails before the LRB, the application serves as an incentive for both parties to do exactly what Prof. Pohler suggests and negotiate a resolution where they both get most of what they want.

Professor Pohler's comments are found in an interview here.

[As a further aside, I suggested last time, based on City HR Director McInnes' comments, that the City's motivation for issuing the lockout notice in the first place was to prevent a labour dispute during winter. A bit of additional reading seems to bear this out; Councillor Charlie Clark, in what I think is a very well-written statement of his views on the situation, says the same thing, here.]

[And as a last, self-aggrandizing link, my brief interview with Global TV is found here. Apparently I'm an expert. Sweet!]

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