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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?

 

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