First Contract Arbitration and the Employee Free Choice Act: Multi-Jurisdictional Evidence from Canada

Abstract

First contract arbitration (FCA) provisions are posed as a solution to the difficulties of negotiating a first contract for newly certified bargaining units. FCA is a longstanding, and no longer controversial, element of Canadian labor legislation. FCA provisions now exist in six Canadian jurisdictions and four distinct FCA models have developed (the exceptional remedy or fault model, the automatic access model, the no-fault model, and the mediation intensive model). In the United States the Employee Free Choice Act (EFCA) included a highly contested proposal to amend the National Labor Relations Act (NLRA) to include an FCA provision similar to the Canadian automatic access model. This chapter offers a balanced assessment of FCA evidence from Canada addressing the main objections to FCA in the EFCA debates. Individual case level data from jurisdictions representing each of the four FCA models is examined. The evidence demonstrates that although FCA is widely available in Canada, it is an option that is rarely sought and, when sought, rarely granted; that parties involved in FCA are able to establish stable bargaining relationships; and, that this process does not, as critics charge, simply prolong the life of nonviable bargaining units. This chapter concludes by suggesting that the practice under Quebec's “no-fault” model and British Columbia's “mediation intensive” model merit consideration for adoption elsewhere. These models position the FCA process as a mechanism fostering collective bargaining and voluntary agreements, rather than treating it as a remedy for dysfunctional negotiations and as part of the unfair labor practice framework.