Monday, 17 October 2011

Should transportation workers be permitted to strike?

There are certain areas in the work field where the public depends a great deal on the services of those that serve them. They include; police officers, firemen and ambulance personnel. But another segment of the work field is those who are in the business of the transportation of people. That transportation industry includes the public mass transit systems such as buses, trains, subways, airplanes and private firms operating taxi cabs. The transportation of people is an essential service because when public and private transportation systems come to a halt, everyone suffers.

Workers strikes are usually organized by the labour unions that represent the workers. They are the means used by the unions in order to bargain for their fellow worker’s rights. Unilateral work stoppages are brought about by the unions with the intention of exacting leverage on wage or work conditions negotiations.

The importance of the transportation system and its functionality cannot be understated which means that workers of this sector are not only a group of society but an important one. But because the transportation of people is such an essential service, one is forced to ask this rhetorical question, “Should the striking by people in that industry be banned?”

I believe that striking by transportation people should be banned. This industry is too important to the wellbeing of society at large to allow to it hold ransom over wage disputes. There are many far reaching disruptions in the economy caused by such strikes.

Air traffic controllers are an extremely important group of workers in the airline industry because without them, the thousands upon thousands of planes flying world-wide would come to a standstill.

On March 25, 1970, the newly designated union (Professional Air Traffic Controllers Organization—PATCO) orchestrated a controller ‘sickout’ to protest many of the FAA actions that they felt were unfair. Over 2,000 controllers around the country did not report to work as scheduled and informed management that they were ill.

Controllers called in sick to circumvent the federal law against strikes by government unions. Management personnel attempted to assume many of the duties of the missing controllers but major traffic delays around the country occurred. After a few days, the federal courts intervened and most controllers went back to work by order of the court, but the government was forced to the bargaining table. The sickout led officials to recognize that the ATC system was operating nearly at capacity. To alleviate some of this, Congress accelerated the installation of automated systems, reopened the air traffic controller training academy in Oklahoma City, began hiring air traffic controllers at an increasing rate, and raised salaries to help attract and retain controllers.

PATCO was a United States trade union that operated from 1968 until its decertification in 1981 following a strike that was broken by the Reagan Administration. The 1981 strike and defeat of PATCO has been called ‘one of the most important events in late twentieth century U.S. labor history.

On August 3, 1981, the union declared a strike, seeking better working conditions, better pay and a 32-hour workweek. In addition, PATCO no longer wanted to be included within the civil service clauses that had haunted it for decades.

Ronald Reagan declared the PATCO strike a "peril to national safety" and ordered them back to work under the terms of the Taft-Hartley Act of 1947. Only 1,300 of the nearly 13,000 controllers returned to work. Subsequently, Reagan demanded those remaining on strike to return to work within 48 hours, otherwise their jobs would be forfeited. On August 5, following the PATCO workers' refusal to return to work, Reagan fired the 11,345 striking air traffic controllers who had ignored the order and he banned them from federal service for life. This ban with respect to federal service was later rescinded by President Bill Clinton in 1993 but during the 12 years the ban was in effect, those controllers who refused to return to work had to find employment elsewhere.

In the wake of the strike and mass firings, the FAA was faced with the task of hiring and training enough controllers to replace those that had been fired, a hard problem to fix as at the time as it took three years in normal conditions to train a new controller. They were replaced initially with nonparticipating controllers, supervisors, staff personnel, some nonrated personnel, and in some cases by controllers transferred temporarily from other facilities. Some military controllers were also used until replacements could be trained. The FAA had initially claimed that staffing levels would be restored within two years; however, it would take closer to ten years before the overall staffing levels returned to normal. PATCO was decertified from its right to represent workers by the Federal Labor Relations Authority on October 22, 1981.

Some former striking controllers were allowed to reapply after 1986 and were rehired; they and their replacements are now represented by the National Air Traffic Controllers Association, which was organized in 1987 and had no connection with PATCO.

There is no doubt in my mind that what President Reagan did to the Air Traffic Controllers was harsh but it was also necessary. If air traffic controllers refuse to work, the entire country would suffer. No group of workers should have that kind of power over the general population of a country.

An illegal protest by security guards threw Pearson airport into chaos on October 6th 2011 as travelers faced long lineups and delays stretching to several hours. The Greater Toronto Airports Authority confirmed that a work-to-rule campaign, which security workers began Wednesday, is responsible for the delays.

The workers are in a dispute with their employer, Garda Security, a private company that is contracted by the Canadian Air Transport Security Authority. (CATSA) They are in a dispute over staffing including a new scheduling system that the workers are unhappy about.

CATSA is responsible for passenger screening at airports across the country, and Garda is its largest security services supplier. Garda Security won an injunction granted by the Canada Industrial Relations Board on October 6th that prohibits workers from slowing down on the job.

Despite the injunction, Pearson continued to experience backlogs across the entire airport. There was an illegal work action by the screening officers,” said CATSA spokesperson Mathieu Larocque. “There was a clear organized slowdown.” Larocque says workers slowed down the screening process by taking more time to look at x-rays and to screen passengers. He adds that extra staff from CATSA and Garda was sent to security checkpoints to speed up the process.

More than six dozen security screeners at Pearson International Airport were suspended on October 12th for delaying travelers trying to get on flights. As I see it, they should have been fired.

Air Canada’s 6,800 flight attendants called off their planned strike after the federal government declared the strike illegal. The flight attendants are upset after the federal minister of labour referred a contract dispute between them and the airline to the Canada Industrial Relations Board, (CIRB) asking the board to examine whether a walkout would affect Canadians' health and safety. While the board reviews the issues, the flight attendants are not allowed to strike and management is not allowed to lock out workers.

The CIRB is an independent, quasi-judicial body that investigates complaints about contract disputes and can take weeks to report its findings. Back to work legislation for the Air Canada-CUPE dispute is already on the Parliamentary notice paper, but now that the CIRB is involved, the government will likely wait until that report before acting. The Board has the authority to impose a contract on the parties.

If transportation workers can use the threat of a strike, they'll end up utilizing the threat of constant mediation as a strategy, causing disruptions that are smaller in individual size but that could end up shutting down a city or even a an entire country and having a detrimental effect on the economy in general and specifically on the livelihoods of millions of people.

I recognize the importance of workers rights to decent wages and working conditions and how they currently use striking as an option the ensure this. However I feel that workers rights can be secured without resorting to strikes that harm innocent third parties (the rest of society). Even if strikes were the only way to resolve these issues, the negative effects of the strikes themselves outweigh any good that they allegedly provide.

For example, Toronto printers went on strike in 1964 against the Toronto Star, the Telegram and the Globe and Mail to fight automation. In 1965, workers voted to return to work, but the publishers refused to take them back. The lock out did not officially end until 1972, after all the striking workers had lost their jobs. Going on strike served no purpose at all.

The problem with strikes is that in the cases of wage disputes, negotiations will ensue. If the negotiations fail to yield amicable solutions, then the disputants can take the matter to a mutually agreed upon arbitrator who will make a legally binding agreement taking into account factors such as the current wages, the rate of inflation, the cost of living, wages in comparative industries and the ability of the government or the company to pay the requested wages.

The trade union generally will push the employer for as many concessions as possible while the employer tries to employ its workers for as low a wage as legally possible. This relationship usually results in equilibrium. The two side’s weapons are threat of lockout from the employer and threat of quitting from the employees. Striking upsets this balance because employers cannot realistically fire all their employees because of its high turnover costs. This leads to trade unions gaining more concessions as employers don’t have any recourse. The risk of this happening is high because of the political nature of trade unions.

Due to the immense benefits that union reps get, there is an incentive for people to run for and retain their position as union rep. In order for them to get re-elected, they compete to cater to the demands of the workers. Workers are constantly pushing their union reps to demand more from the employers. They do not consider the ability of the employer to pay higher wages because they are looking out solely for the worker which leads to the employer being abused. In such cases with vital industries such as transport, the harms are considerably high. Before going into the harms, we need to remember that this is a comparison between gaining worker’s rights through legal arbitration, versus proceeding with strikes.

As I see it, the losing party should bear the full cost of bringing the case to arbitration in order to disincentivize cases if they are frivolous.

Disruptions in mass transportation will negatively affect the tourism industry, as tourists will be unable to travel freely. When Canada had Expo in Montreal in 1967, the transit system decided to go on strike. The only way you could get to the Expo site was by car or taxi. As a result, many people in Montreal didn’t go to the Expo. I went one day but chose not to go the second day as the cab fare was too expensive.
Every government knows that without mobility for its citizens, productivity is impaired. The government uses tax-payer money to fund the transportation industry because it recognizes mobility as a fundamental right of the people, so to take away this right, even for a few days, one needs to have strong justification. I am not convinced that wage increases is a reasonable justification for shutting down an industry when you consider just how many people are unemployed.

Unions argue that striking is also a fundamental right, so society in general would need strong justification to take away that right.

However, pressure from the general populace makes companies treat workers fairly. Western societies value worker’s rights; they regularly stage protests against companies which are abusive to their employees. For example, sweatshops have been universally condemned and companies like GAP have been forced to conform to proper treatment of employees even though the states their factories that are based in Laos did nothing.

Labor unions have strong ties to political parties because labor unions represent the views of workers in the nation so the parties that champion worker’s rights are the ones most likely to win their votes. So any major grievances from workers will definitely be voiced by these parties, particularly considering the importance of the transport industry.

Some will say that society deserves to suffer from strike action by transportation employees because members of society did not pressure the government to do something about the worker’s grievances. But this rational accepts that society does have an influence on the behavior of employers, so it’s a tacit concession that society does offer a level of protection for workers. Also, this admits that political influence plays a major role in keeping employers in check, so labour unions without strike as an option can still use their political clout to protect their workers.

It is in the economic interest of the employers to have their employees not quitting, especially in the transport sector where there are huge training costs which disincentivizes high turnover. Due to looking out for themselves, logically employers will not allow conditions to go bad enough for workers to quit.

So the relevant circumstance for this issue is for when the employer does have money but chooses not to pay a fair wage. Such issues can be solved with arbitration where the employees are able to make their case that the employer has money but is being stingy. The arbitration will take into account the issues to be discussed and will also have the force of law.

Unions will argue that their members need to have some bargaining power in order to enter in a fair negotiation. They will argue that the right to strike does that exactly. It gives workers a last resort measure that increases the incentives for the employers to reach agreements that will favor all.

Admittedly, strikes are a valid and public way to express complaints about working conditions. If we don't let workers strike we are not letting them improve their working conditions. The reason why this may happen is that companies or governments can halt any improvement because they know that their employees will have to keep working.

However, strikes are not necessary for bargaining, but the threat of one is a big incentive to improve working conditions and to adopt measures rapidly. In many case problems will be resolved by agreement and on time to avoid a strike. However, the threat of the strike is precisely what would prevent abuses in the future.
Unions will argue that excessive bargaining power from companies and governments increases the possibility of them violating workers rights without consequences. If workers couldn't legally go on strike, the government could punish workers that decide to take actions by jailing them. Therefore, they would have all the incentives to default on commitments with workers.

Unions will also argue that the right to go on strike permits workers and employers to have balance in their negotiations. It helps achieving fair decisions and it improves the possibility of reaching important agreements, since there a no better alternatives.

But the public knows that it is in the interests of their safety that the person operating the vehicle they are traveling in is well rested and not exhausted. There is nothing in striking that proves that only strikes are able to bring about these benefits. Even without strikes people who are victims of accidents caused by employees’ exhaustion can sue the transport company for damages because their harsh labour conditions would have directly contributed to the accident happening in the first place. The threat of a lawsuit would serve as a deterrent to allowing conditions to deteriorate to the point where workers would be exhausted enough to cause accidents. The public who use these services would obviously demand services that are safe to use. They need to prove why the collective pressure from both employees & users would not be enough to cause change. Again they need to prove why workers would only stop at using strikes to demand reasonable concessions and not demand unfair and unsustainable benefits.

Bettering working conditions in general prevents absenteeism; reduce stress in workers which in turn benefits the users. The short term harm of a strike pales in comparison to the improvement in service and safety felt by all.

Also, the union’s position is that outlawing unions/workers/people ability to bargain better conditions is a counterproductive way to achieve public well-being since society's collective bargaining is also affected. It's clear that transport workers are members of society and should be protected as such but if the government is allowed to ban strikes for that industry; there is nothing to stop it from doing the same to health workers or food industry workers, for instance.

If strikes were banned in an industry, workers can still stage sickouts (blue flu for cops) or slowdowns (where workers become unproductive on purpose). In the case of the transport industry it could mean extreme delays in train and plane times.

Arbitration is not a negotiation where you need leverage. Arbitration is much like going to court, where the arbitrator will hear the case of the disputants and will make a legally binding ruling based on the soundness of their arguments. So if the demands of the workers are indeed justified then they will win. A ‘credible threat’ such as striking is therefore not needed because if the employer refuses to abide by the decision they can be taken to court and punished.

The problem with strikes is that there is no safeguard to determine whether the demands are reasonable or not. Such unfettered power is what enabled the UAW union in the US to get benefits that bankrupted some of the US Auto makers.

There are numerous legal protections that workers are legally entitled to. Employers who do not provide this will be in serious trouble. The protection I am speaking of includes a maximum workday hours, compulsory maternity leave and minimum wages.
The international labour standards are quite clear—transport workers have the same trade union rights as workers in other industrial sectors. They have the right to freedom of association and are free to take industrial action.

Yet transport workers can be particularly vulnerable to restrictions on their trade union rights. For example, the International Labour Organization (ILO) has said that it is a serious violation of freedom of association to ban trade unions for international airline employees, public sector employees, and civilian staff in the armed forces. Yet various governments have tried to ban unions in one or another of these categories so as to target the transport sector.

Some governments have tried to outlaw the right to strike specifically for transport unions. Some have argued that the public service is an area where the right to strike should not be automatic. Yet, according to the ILO, employees in state-owned commercial or industrial enterprises must be given the right to strike with only one proviso: “that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population”. The ILO has also said that the concept of public servant “should be limited to public servants exercising authority in the name of the state”.

The ILO does recognize that the right to strike can be restricted or even prohibited by governments in essential services. However, this is only where stoppages would mean a serious threat to life, personal safety or health. Hospital, utilities supply and telephone services can be designated as essential. But in the transport sector, the ILO has identified only air traffic control, when this service is essential to guarantee air safety. In all other areas of transport operation, the strict sense of the term “essential services” does not apply.

The ILO says that back-to-work orders, requisitioning orders, or the hiring of workers to break a strike in any of the sectors not strictly considered essential is a “serious violation of trade union rights”.

Governments have also used minimum services legislation to restrict transport workers’ rights. The ILO says that minimum service levels can be laid down in the event of a strike but only where “life or normal living conditions” are endangered, and trade unions should participate in defining the level of minimum service.
Despite these ILO rulings, governments seem unable to resist classifying many forms of transport – road, rail, sea and air – as “essential services”. They have also used requisitioning orders and excessive minimum services rules. The 2001 Annual Survey of Violations of Trade Union Rights by the International Confederation of Free Trade Unions (ICFTU) gives many examples:

• In Ethiopia, the definition of “essential services” under the law includes air transport, railways and buses. In Dominica it is port services, and in Bulgaria the railways that are considered “essential”. Guinea, Mozambique, Panama, Thailand and Vietnam name the whole transport sector as “essential”.

• In Manila, Philippines, the government banned a strike by light rail transit workers and dismissed 900 workers. This is despite a court ruling that this type of public transport could not be classified as “essential”.

• In Serbia, 12 trade union members were sacked after a strike in December 2000 at the Nis Express Transport Company. In this country, the list of essential services is so long that some 60 per cent of employees are involved.

• In Switzerland, a 1927 law included railway workers, as employees of a state enterprise, among those banned from striking. A change to the law in January 2001 means they are no longer state employees and the ban is lifted, though there are still restrictions under their collective agreement. Until recently German workers too were classified as “civil servants” and hence not permitted to strike but the law has now been revised.

• In Quebec, Canada, the right to strike is limited by a very broad definition of essential services. In November 2000, the Quebec authorities ordered truck drivers in Montreal back to work after they had gone on strike to demand that their employer recognize the union and engage in collective bargaining.

But the ITF has success stories to tell, too. In Mexico, in 2001, trade union solidarity finally prevailed over government attempts to stop strikes by requisitioning. Cabin crew at the private Mexican airline Aeroméxico were twice barred from striking after the government invoked the legal procedure of a requisitioning order, known as a requisa. This provoked international protests, including a message from the ITF. A third strike by the union Assa went ahead on the 2nd of June 2001 but was called off within 48 hours, achieving an agreement for a 9.5 per cent pay rise.

“The company was quite confident that the government would apply the requisa,” said Antonio Fritz, ITF Regional Secretary. “When it did not, the company started to negotiate seriously for the first time.”

For the employers of the 200 drivers of the Vilnius public transport system in Lithuania, minimum services meant a 70 per cent level of service being imposed without consultation – effectively prohibiting a planned one-day strike over unpaid wages. A strike did go ahead on 18 May 2000 but a local court declared the strike, and any future action, illegal. The decision went to appeal and was reversed by the Lithuanian Supreme Court in March 2001 – again following protests from around the world, including from ITF affiliates.

“This is the first such case in Lithuania when the decision on strikes ended in such a result and we are very proud,” said Jonas Petraska, Chair of the Motor Transport Workers’ Federation, the union involved. “The collective agreement is signed in the Vilnius bus depot and wages increased a little. Negotiations are taking place in the Vilnius trolley-bus depot.”

An ILO ruling supported the union’s case and called on the Lithuanian government to amend its legislation so as not to restrict the right to strike. The ruling also clarified the ILO’s own attitude to minimum service levels. Where no agreement can be reached between workers, employers and governments on the minimum level to be set, an independent body must settle the matter.

Workers’ complaints to the ILO about such government violations of fundamental rights are heard by specialist bodies, the Committee on Freedom of Association and the Committee of Experts on Applications. They are lengthy procedures but this is where definitive rulings of principle are made which can be used by trade unions to assert their rights.

“Governments have a worrying tendency to adopt an authoritarian response when confronted with legitimate demands from transport workers,” says ITF Assistant General Secretary Stuart Howard.

“The International Labour Organization (ILO) has ruled that apart from air traffic controllers, transport is not strictly an essential service. Back-to-work orders in the transport sector are violations of trade union rights; the implementation of minimum services rules is also strictly defined,” Howard adds. “The ITF will continue to work to ensure transport workers are not bound by the bogus restrictions we still find in operation on every continent.”

The 2001 Annual Survey of Violations of Trade Union Rights by the International Confederation of Free Trade Unions (ICFTU) published in October 2001 showed that, in the year 2000, 209 trade unionists were killed or “disappeared” – 50 per cent more than in the previous year and largely because of the appalling death toll in Colombia. Worldwide, about 8,500 were arrested, 3,000 injured, over 100,000 harassed, and nearly 20,000 dismissed because of their trade union activities.
Commenting on the survey, the ICFTU said that, although repression in developing countries was more violent, “employers in the west also try to undermine the unions, but take a more cynical approach”.

American public-transport workers generally cannot strike. Many individual states have their own prohibitions: government employees in New York, for instance, are forbidden from walking out. Sarah Veale of the Trades Union Congress (TUC) points out that the European Convention on Human Rights explicitly protects workers’ right to withdraw their labour. But strike bans can be justified on national-security grounds: in strike-happy France, some firemen are covered by one.

But in most other ways British union laws are already among the toughest in the developed world, says Richard Hyman of the London School of Economics. In contrast to other European countries such as France and Italy, Britain’s common law recognizes no formal right to strike. In theory, unions can be sued for inducing workers to breach their contracts, says Nicholas Lakeland, an employment lawyer at Silverman Sherliker. Unions can immunize themselves by following elaborate procedures, but officials complain that doing so is hellishly bureaucratic. “I’m not sure there’s ever been a strike that’s been 100% legal,” says one TUC official.
Vital workers whom the government might ban from striking are precisely those who can cause the most damage if they do so anyway. “Even if official action is proscribed,” says Mr. Hyman, “that could just lead to unofficial strikes, which would be much harder to cope with.”

In summary, I believe that workers in the transportation industry whose employment has a direct impact on the safety and scheduling of planes, trains, subways and buses should not have the right to strike nor should they conduct slow downs. Their complaints should be dealt with by arbitration. If after an arbitrator’s ruling, if they are not happy with it, they should have the right to file an appeal. Meanwhile, anyone who stops working or slows down his work after an arbitration decision has been made should not only be suspended from his job, he should also be fired from his job and never be permitted to return to that kind of job again.

I believe in that adage that the majority should not suffer at the hands of the few.

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