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Special Investigator Kaplan Recommends Interest Arbitration, Criticizes CUPE’s Bargaining Strategy

The special Industrial Inquiry Commissioner, William Kaplan, has issued his final report.  For reasons that are not clear to me, the government does not appear to release these Industrial Inquiry reports to the public.  However in this case, both York University and CUPE published the report.

Here it is.  It is a relatively succinct and informative read.  If you are interested in industrial relations and labour law, I recommend you read it.   Ultimately, Kaplan concludes that the parties are too far apart to reach a deal through collective bargaining and he therefore recommends that the parties “voluntarily” agree to refer the dispute to interest arbitration.  According to Kaplan, the parties “have completely different world views that are informed by completely different academic and institutional aspirations. This delta precludes meaningful collective bargaining.”

The government quickly issued a press release encouraging the parties to agree to interest arbitration “as quickly as possible”.   Almost as quickly, CUPE 3093 issued its own release rejecting the recommendation for interest arbitration.  

And so here we are.

Kaplan recommended back to work legislation if CUPE refused to agree to “consensual” interest arbitration.  As of today (May 7), I have not heard anything from the Liberals about legislation.   York’s President, Rhonda Lenton, took to Twitter yesterday to plead for legislators to act before the summer recess:

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Notably, Kaplan also recommends that the provincial government establish a task force to study precarious employment in post-secondary institutions, recognizing that much of the underlying tensions at York exist throughout the province and have to do with systemic issues.  The idea of a task force is an excellent one, but we will no doubt have to wait until after the upcoming election to see if it ever sees the light of day.

Much of Kaplan’s report is about specific details of the conflicting proposals and the troubled history between CUPE 3093 and York.   He notes that in the last 21 years, there has only been one strike at York that did not involve CUPE3093.  There have been four lengthly CUPE3093 strikes in the past seven rounds of bargaining.

Kaplan also voices a rather strong opinion about CUPE3093′s collective bargaining strategy, which students of industrial relations should think about.   CUPE advised the employer at the outset that it had adopted an “open bargaining” and “bargaining from below” strategy.  I don’t know the details of this strategy, and I’d be happy to learn them, but this strategy appeared to include among other things member participation in negotiations and live Tweeting of negotiations designed I presume to improve transparency and democratic participation by CUPE members.

Kaplan makes the point that, however laudable principles of democracy and transparency are in the abstract, they can also pose a barrier to a negotiated settlement:

No comment need be made about the union’s bargaining parameters and culture other than to say that it is not normative. From an experienced perspective it is easy to understand how it might not enhance collective bargaining, however laudable the values – democracy, transparency, social justice, to list three – that are said to inspire and inform it, at least in part. Given its track record in successfully negotiating collective agreements, the union might usefully reconsider its general approach. “Open bargaining” “bargaining from below,” and no deal with one unit unless there is a deal with them all, appears to be a recipe for one thing: position polarization and a succession of lengthy labour disputes.

These comments no doubt will anger CUPE members and their bargaining team, who have argued all along that it was York’s bargaining strategy, including its desire from the outset to have the matter decided by arbitration, that has prevented a negotiated settlement.

I remember thinking when I first saw live Tweeting by CUPE members of negotiations how different this was from negotiations and settlement discussions I have been involved in over the years.  If you have been around labour relations for any length of time, you will have seen lots of deals worked out through frank, tough exchanges of views in the bargaining room, or in hallways, or hotel rooms, or over drinks or late night phone calls with the key representatives of the parties.   The rank and file members are rarely privy to those discussions, although the ultimate outcome of the verbal exchanges are eventually put to them in a union meeting where the workers get to express their views.  Sometimes they express their views with feet, which is what happened during the last CUPE3093, when the bargaining team brought back a proposed deal to an angry membership who voted it down.   I suspect that experience might have something to do with why CUPE this time adopted an “open bargaining” strategy.

In the theory of collective bargaining  in the world I grew up in, it was assumed that negotiators should be given space to make a deal without having to report back to constituents on every single discussion.  The policy justification for the “settlement privilege” in evidence law operates on the same basis.  The idea is that in order to encourage a free flowing exchange of ideas, the parties should not be held to everything they propose or say to one another in settlement negotiations.   The knock against live Tweeting of bargaining discussions would be that it discourages the sort of open, exploratory, often frank exchange of ideas that can sometimes create the foundation for a settlement.  If a spokesperson knows that everything they say will be broadcast live to the world, they will be less likely to say things that veer from a tightly controlled script and to exchange in exploratory “what ifs…”.    Mr. Kaplan seems to suggest that CUPE may want to re-examine its “open bargaining” approach to negotiations.

Issues for Discussion

What do you think of Mr. Kaplan’s report?  Does it fairly describe the causes and possible options for resolution of this dispute?

Do you think the Liberal government will act quickly to impose interest arbitration, as Mr. Kaplan proposes?

Do you think that the shadow of an impending back to work order will provoke an 11th hour settlement by the parties?

Finally, what do you think of Mr. Kaplan’s conclusion that CUPE’s “open bargaining” strategy should be reconsidered?



One Response to Special Investigator Kaplan Recommends Interest Arbitration, Criticizes CUPE’s Bargaining Strategy

  1. Wesley Emerson Reply

    May 18, 2018 at 10:36 pm

    Thirty five years ago I was the door man at the Graduate Students’ Lounge at York University and a 3rd year law student at Osgood Hall. I had many conversations with graduate students especially on the issue of achieving a full-time faculty position. The President of the Graduate Students Association used the phrase “a lost generation of scholars”. You can see why Mr. Kaplan’s report interested me.
    The key issue is whether York should agree to a minimum of position filled as conversions from CUPE or maintain its current right to conduct an open search.
    Mr. Kaplan writes “In my view, the parties have reached an impasse and there is no reason to believe that they will be able to resolve their dispute through free collective bargaining.”
    Minimum contract faculty conversions are an intrinsic substantive interest for CUPE and open search is an intrinsic substantive interest for York. Obviously the parties are engaging in distributive bargaining to achieve their desired outcomes – interests conflict. The most important distributing bargaining weapon for CUPE is threat or use of the strike. CUPE is trying to force York to negotiate changes. If York is unable to run the University without CUPE York loses bargaining power: if CUPE cannot bring York to its senses then CUPE will bring York to its knees. That is how Employers and Unions get substantive changes in their collective agreement: they force the change. Labour Relations Acts presume the right of employees to strike. As former OLRB Chair MacDowell put it:
    Not to put too fine a point on it: the parties are entitled to inflict economic damage on one another, with a view to achieving their preferred bargaining outcome.” (RE Capital Taxi [MacDowell], 149 LAC (4th) 97 at p 119)
    George Adams writes:
    Whether viewed as a carryover from classical economic theory; as a fundamental expression of western values; or as a pragmatic assessment of the most acceptable way to resolve employment-related conflict, the fact is that we have adopted a system of countervailing power to resolve disputes over terms and conditions of employment.” (York Regional Board of Health and Ontario Nurses Association, 18 LAC (2nd) 255 at p 262)
    No doubt there are dispute resolution scholars who will promote the use of Interest-Based Bargaining (Mutual Gains; Win-Win) to resolve the dispute. However, due to the nature of IBB it is unlikely to produce a substantive contract change subjectively advantageous only to CUPE.
    Mr. Kaplan recommends Interest Arbitration. The major principle used in Interest Arbitration is ‘replication’: an Interest Arbitrator should award compensation the parties would likely reach in the context of free collective bargaining taking into account comparability with similarly situated employees. Interest Arbitrators have been described as ‘terribly conservative’ when it comes to changing basics of the collective agreement and Interest Arbitration itself has been referred to as conservative. The process does not easily achieve solutions to complex problems and Interest Arbitrators are reluctant to make serious innovations in collective agreements on the basis Employers and Unions should make these decisions themselves.
    Where does this leave CUPE? Traditional bargaining theory tells CUPE to force the change. Mr. Kaplan tells the Province to implement Interest Arbitration which is unlikely to break new ground in guaranteeing some of the new faculty jobs for CUPE members (part time scholars trying to get a full-time faculty job).
    Is this demonstrably justified in a free and democratic society?

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