Strike Wave: The Need for Mandatory First Contract Arbitration in Canada

By Brad Walchuk

A recent strike at Covered Bridge Potato Chips in Hartland, New Brunswick has garnered considerable attention in the popular labour media, and, to a lesser degree, even in the mainstream media. The strike is noteworthy for a number of reasons and provides a compelling look into contemporary labour relations, especially for the fact that company President Ryan Albright told United Food and Commercial Workers (UFCW) 1288P representative Carl Flanagan, “screw you and your fucking union.” Issues prompting the organizing drive and the strike at Covered Bridge include wages – as many workers are making only the recently increased provincial minimum wage of $10.30 per hour – and also basic provisions such as job security, safety improvements, and water fountains on the factory floor. More recently, the strike has become noteworthy for its usage of replacement workers, or scabs, and represents but one of a growing number of instances in which employers are resorting to hiring replacement workers during a legal work stoppage.

OPSEU Local 294 members on strike at CarePartners in 2015
OPSEU Local 294 members on strike at CarePartners in 2015

An important element of this strike that is briefly mentioned, though often overlooked, is that it is a strike over a first-contract. This means the workers are recently unionized and are in the process of negotiating their first collective agreement (as opposed to being already unionized and re-negotiating an existing collective agreement, which characterizes the vast majority of bargaining in Canada). In the case of the workers at Covered Bridge, their strike – which began on January 5th – comes over two years after first voting to unionize in late 2013. Despite repeated efforts by the UFCW at the bargaining table, the president of Covered Bridge doesn’t appear to be opposed to the workers’ set of proposals per se, but rather, seems opposed to granting the workers’ proposals through their union and under a legally binding collective agreement. As one striking worker claims, “He [Albright] told us that whatever we’re asking for, he’d give us but not under the union environment.”

That this strike is largely about a newly unionized workforce seeking a first collective just as much as it is about the workers’ proposal themselves (if not more so), it is remarkably similar to a lengthy strike in Ontario in the Niagara Region and in Norfolk County by the Ontario Public Service Employees Union (OPSEU), Local 294 against Care Partners, a for-profit health care provider, where nursing staff have been waiting for a first collective agreement for over two years and were on strike for over six months before securing mediated-arbitration after a hearing with the Ontario Labour Relations Board.

First Contract Arbitration would help to eliminate strikes by recently organized workers who are seeking a first contract, much like the now-ended strike at CarePartners and the current strike at Covered Bridge. Clearly, a successful vote in favour of unionization (especially under a two-step process: card-drive followed by a secret-ballot vote) strongly indicates the workers wish to be covered by, and receive the benefits of a collective bargaining agreement. That they should be forced to strike to achieve a collective agreement in the face of a hostile employer for any unreasonable length of time, let alone the six months that OPSEU members needed to picket in order to secure a first contract, is an area of grave concern. In both the CarePartners and Covered Bridge strikes, workers had been organized but without a first collective agreement for roughly two years before resorting to the picket line. As Paul Weiler, an early proponent of first contract arbitration noted, its presence would help avoid situations like these by helping to foster some sort of ‘trial marriage’ on the parties, which they could re-evaluate at a later date, but would at least help to secure the process in the short term.

Most jurisdictions in Canada have some access to first contract arbitration, but the conditions that are needed in order to trigger it vary from jurisdiction-to-jurisdiction. As Christopher Riddell notes, there are three main types of first contract arbitration: Automatic access, the no-fault system, and the fault/exceptional remedy system. Automatic access (or mandatory first contract arbitration) is triggered as soon as a prescribed time limit (from the time of certification) has been reached and conciliation has been exhausted. This system is currently used in Manitoba, and would be an important gain for unionized workers elsewhere, as the strikes against CarePartners and Covered Bridge indicate. Under an automatic access system, the workers wouldn’t have needed to strike to secure a first contract at all, as one would have been provided through the arbitration process, and would have led to a much quicker remedy.

The second type of first contract arbitration is referred to as the no-fault system, under which either party can apply to the appropriate labour relations board for an arbitrated first contract, but must first demonstrate something of “a dysfunctional set of bargaining.” This system is currently in place in Ontario. The third type of first contract arbitration is referred to as the fault system or the exceptional remedy system, and is triggered when the Minister of Labour refers an application by one of the parties to the provincial labour relations board, who then hears the case. The fault system, as Riddell notes, “involves a double-screen on the application, typically requires evidence of bad-faith bargaining.”

Of course, a fourth model of first contract arbitration also exists, namely the absence of any legislation to bring about an arbitrated first contract. Perhaps not surprisingly, New Brunswick is one of three Canadian provinces without any form of first contract arbitration (Prince Edward Island and Alberta are the other two). The absence of access to an arbitrated first contract in New Brunswick certainly helps to explain the over two year delay (and current strike) for a first contract for UFCW members at Covered Bridge. The implementation of some form of first contract arbitration would certainly help the process, though as the CarePartners strike in Ontario illustrates, a lengthy delay may also occur. In that situation, however, a mechanism was available (albeit with a high threshold) and ultimately used.

Warren (Smokey) Thomas, the president of OPSEU, recently used the CareParters strike to justify the pressing need for improved first contract arbitration. The same argument would hold true for striking Covered Bridge workers in New Brunswick. Thomas argued that Ontario “needs to make first contract arbitration mandatory after a certain amount of time if an employer can’t come to an agreement with a new bargaining unit” and went on to suggest that Manitoba’s automatic access/mandatory first contract arbitration legislation would be a good model to follow, whereby either party can ask the labour board to settle a first contract by arbitration if the parties cannot secure an agreement through the usual process of collective bargaining. The other party is then forced to enter arbitration, and the resulting settlement is binding for at least one year.

The attraction to automatic access or mandatory first contract arbitration for workers is clear: it helps them to secure a first collective in a reasonable amount of time and without resorting to a strike. In fact, when first contract arbitration was first introduced in Ontario, it was in response to a growing wave of strikes over securing a first collective agreement, most notably the historic Fleck strike, a strike led largely by low-waged women in Centralia, Ontario.

Women on strike at Fleck Manufacturing in 1978
Women on strike at Fleck Manufacturing in 1978

Automatic access/mandatory first contract arbitration is much needed in New Brunswick and would serve workers well, especially those currently on the picket lines at Covered Bridge. While this strike, like any, is certainly about wages, job security and respect, this one has the added element of simply belonging to a union and having access to a collective agreement- a basic right that no worker should be prevented from achieving, that no employer should be emboldened to prevent, and that no state should fail to properly facilitate. What the passage of anti-scab legislation would likewise help striking workers at Covered Bridge, the usage of scabs would not even be a possibility if automatic access/mandatory first contract arbitration were in place, as a strike wouldn’t be necessary to begin with.

It is time for unions to seriously press for automatic access/mandatory first contract arbitration in all jurisdictions across Canada. It provides an important legislative framework to help workers secure a collective agreement and avoid otherwise unnecessary work stoppages.

Selected Bibliography:

Backhouse, Constance. “The Fleck Strike: A Case Study in the Need for First Contract Arbitration.” Osgoode Hall Law Journal 18.4 (1980): 495-553. Available on-line:

Riddell, Christopher. “Labor Law and Reaching a First Collective Agreement: Evidence from a Quasi-Experimental Set of Reforms in Ontario.” Industrial Relations 52.3 (2013): 703-726. Available on-line:

Weiler, Paul. Reconcilable Differences: New Directions in Canadian Labour Law. Toronto: Carswell, 1980.

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