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CUPE3093 Soundly Rejects York’s “Final Offer” in Forced Vote. Now What?

 April 9 2018

Striking CUPE3093 members at York University have soundly rejected York University’s proposed collective agreement.

The Vote Results

The results of the vote, which was ordered after York exercised its one time statutory right to request that the

IMG_1777government order a ratification vote on the last offer put to CUPE, could not be clearer.

Those results were as follows:

Unit 1: No: 1279 Yes: 210 (86% No)

Unit 2: No: 653-108 (86% No)

Unit 3: 43-1 (98% No)

I’ve attached photos of the official OLRB vote results to show you what they l0ok like.

What Happened Here?

There are a couple of explanations of what happened here.  One is that York very badly misjudged the mood of the bargaining unit, perhaps believing that there was a silent majority in favour of the employer’s offer.   Remember that all York needed was 50% plus one of the bargaining unit employees to vote in favour of its offer.  It did not come close to that figure in any of the three CUPE units.

IMG_1779

I predicted in a blog entry posted at the beginning of the strike that it was unlikely the strike would end as a result of a final offer vote.   I based that prediction on my sense of the mood of the place, but also on history:  in 2015, the CUPE3093 bargaining team took an employer offer back to the membership, and recommended it, and yet the membership in 2 of the 3 units still rejected the offer.  That result demonstrated that the membership is determined, angry, and independent thinking.  This time, the CUPE bargaining team strongly encouraged rejection of the employer’s offer.

A second possible explanation is that York figured there was little downside to asking for the vote.  If it won, then the strike is over.  If it lost, even by a wide margin, this result would then support its claim that bargaining has reached an impassable deadlock and therefore that the only possible resolution is through interest arbitration imposed through back to work legislation.

So far, the Liberals have said they do not want to get involved.  They have an election to worry about and then know from experience that back to work legislation is almost certain to result it having to defend yet another complaint under the Charter of Rights and Freedoms.  However, if York can build a factual record that bargaining will not resolve the strike, and that students’ academic year is in peril, pressure will build on the Liberals to intervene.  Pay attention in the coming days to whether the Liberals start raising the possibility of intervening, and if so, whether the vote results play into their argument as to why government intervention might be necessary.

Indeed, in a press release issued just moments ago, York again reiterated its desire to send the dispute to interest arbitration:

Interest Arbitration could End this strike today

Since the first day of bargaining we have asked CUPE 3903 to refer key areas of disagreement to arbitration where an independent third party can make a binding decision fair to both parties.  If CUPE 3903 agrees, the strike can end immediately for everyone.

As I noted in the earlier post, whether collective bargaining parties support interest arbitration depends on what they hope to get out of the bargaining.  This time York thinks it would benefit from arbitration whereas CUPE3093 does not. In past IMG_1778bargaining rounds, York has argued strenuously against interest arbitration, arguing that: “Engaging in arbitration on these issues is tantamount to allowing an outsider who has no continuing interest in, or commitment to, the University to have the authority to decide academic priorities for the institution.”  So you should always take claims by employers and unions that interest arbitration is the preferred route with a royal grain of salt.

Remember that just a few months ago, the Liberals enacted back to work legislation to end the college instructor strike.   The Liberals moved only after the teachers rejected a final offer vote put to them by a margin of about 87 percent, which pretty much parallels what happened today in the York/CUPE3093 vote.  If you want to see what York back to work legislation might look like, take a gander here at the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017.   Note especially this paragraph in the Preamble of that legislation:

A vote of the members of the bargaining unit in respect of the Council’s last offer was conducted by the Ontario Labour Relations Board. That offer was rejected by the members of the bargaining unit. Negotiations have reached an impasse and the parties are deadlocked….  For a significant number of students, the completion of their academic studies and the successful achievement of the program learning outcomes required for job readiness may be at serious risk.

Boom.  If you want back to work legislation at an educational institution in the post Saskatchewan Federation of Labour (i.e. Charter protected right to strike), you need to demonstrate that the academic year is in peril AND that negotiations are “deadlocked”, and a good way to show the latter apparently is for the employer to get its ass kicked in a “final offer vote” debacle.  Therefore, it may be that York’s plan is proceeding on schedule.  By the way, the colleges back to work legislation is now subject to a Charter challenge filed by the union OPSEU.  If back to work legislation is introduced at York, CUPE might be able to get its Charter challenges joined up with the OPSEU case.

So now that the distraction of the “final offer vote” is behind us, we will have to see if the parties are able to return to collective bargaining.  Personally, I am skeptical at this point that a bargained solution will end this strike, but I am not at the table and I do not all the details.  Certainly York’s failed gambit has done nothing to move the parties closer together and, if anything, it has only increased the hostility between the negotiating teams.  This may play right into York’s hand.

Question for Discussion

Do you think that York badly misjudged the mood of the bargaining units when it decided to have its offer put to a vote? 

What do y0u think of the possibility that the vote results help York’s argument that the government should intervene and order interest arbitration to end the strike?

 

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4 Responses to CUPE3093 Soundly Rejects York’s “Final Offer” in Forced Vote. Now What?

  1. Fernando Reis Reply

    April 9, 2018 at 8:01 pm

    Wow, what a surprise, not! I see the “hurdles” Saskatchewan imposes. Interest arbitration is looking like a real possibility. The overwhelming rejection of York’s offer can be used as evidence at the hearing when considering the replication principle. The rejection stands for the proposition that the ultimate deal must look very different from what York has proposed and this should end up favouring the union. Not sure if these parties would ever consider final offer selection.

  2. Deborah Clipperton Reply

    April 10, 2018 at 3:56 pm

    Thanks for your analysis. I have a question as well as a response.
    I think York fully expected this result, and they felt it a necessary move towards getting the Liberals to legislate us back to work, and the contract to arbitration, which they have wanted all along. However, I think Wynne is reluctant to do this, first because it would then be clear that the York Board of Governors has successfully manipulated the government, not good for her image in liberal quarters,since any government would like to at the least appear independent. Second, pre-election, she is clearly courting the left, hoping NDP voters can be persuaded to hold their noses and vote Liberal, if only to make sure Ford doesn’t get in. On the other hand, she could present it as a rescue operation, to preserve the summer term. which, at this point, it might be.

    To your second question: It is true that a solid no vote makes it clear that the union and the employer are still very far apart. However, the argument is not so much about the Winter term – the university has already mitigated any potential difficulties for students through its remediation plan. I think the employer might be worried about losing the summer term, but I don’t know what kind of consequences they might face if that were the case.
    It is possible that York is playing a long game here, and might be quite willing to have CUPE 3903 stay out all summer, despite that Unit 2s do a great deal of summer teaching. Such a strategy would be very difficult for many senior members, including the leadership, and might force them to look for work in other sectors, and might in fact cause enough hardship and dissension to break the union. Seems a pretty high price for the employer to pay though.
    I wonder what role the Senate reclamation currently taking place will have? I think this might be the longest student occupation in Canadian university history. Bit of a wild card.

    I have a question – are there any consequences to “bad faith bargaining?”
    what happens if the university flat refuses to come to the table?

  3. Robin Blyth Reply

    April 11, 2018 at 4:16 pm

    With all due respect, David, do you not foresee a scenario in which neither the Province or York want back to work legislation?

    • Doorey Reply

      April 13, 2018 at 12:57 pm

      Hi Robin. The government clearly does not want to be involved. York has stated almost from the outset that they want interest arbitration unless CUPE agrees to back off their main proposals.

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