By David Doorey, York University
Almost six years ago this week (on March 13, 2018 to be precise), I posted a blog entry entitled “How Will the York Strike End?” The 2018 strike was about 2 weeks’ old when I wrote that post. We find ourselves in a similar situation again. So I thought I would dust off my 2018 post and update it for 2024. Actually, I don’t need to change very much since the options for ending the strikes remain the same. So, here goes.
Option 1: The Parties Reach a Voluntary Settlement
Ideally, CUPE and York return to the bargaining table and reach a deal on their own and then a majority of the CUPE membership then vote in favour of the deal. This happened after a month long strike by CUPE in 2015. At this point, the parties do not appear even to be speaking, so while it is possible that the parties will reach a deal themselves, that could take a while. York is saying it is prepared to meet, and CUPE is saying it is prepared to meet provided that York makes a serious offer that moves from its current position on outstanding items.
A possibility is that something provokes the parties back to the bargaining table. For example, perhaps the Conservative government threatens, or even introduces, back to work legislation that would end the strike and impose binding interest arbitration. In 2009, the Liberal government introduced Bill 145, York University Labour Disputes Act, 2009 after an 85 day strike by CUPE 3093. That legislation immediately spurred the parties to reach a collective agreement before the arbitrator did so. More on back to work legislation in a moment.
Option 2. The Employer Seeks a Final Offer Vote on its Last Offer and the CUPE Members Accept It
About a month into the 2018 strike, York asked the Ministry of Labour to order a one-time vote of CUPE members on the last offer that it had made to the CUPE bargaining team. This right is found in Section 42 of the Labour Relations Act. York can only do this once. Employers try this tactic if they believe that a majority of employees would accept the employer’s offer if given the chance to vote on it, but the union is refusing to put the offer to a vote.
It is a risky move because if the workers vote down the proposal it can cause them and the union to dig in and expect that the employer will come back with a better offer. In 2018, the CUPE members voted down the offer overwhelmingly and the strike continued. On the other hand, a rejected final offer vote then becomes “evidence” that the parties are deadlocked and this argument is then often used to bolster demands for governments to step in and legislate an end to the work stoppage.
Option 3: The Parties Agree to Refer the Dispute to Voluntary Interest Arbitration
The parties can always agree to send unresolved issues to binding interest arbitration. That process is described in Section 40 of the Labour Relations Act. Voluntary, consensual interest arbitration isn’t used very often because one side or the other usually believes that interest arbitration is not in its interest. Interest arbitration tends to be conservative (or at least is perceived to be so) and therefore the more a party is hoping to move away from the status quo, to bargain some sort of breakthrough or fundamental change to the collective agreement or that veers from the industry norms, the less likely that party is to perceive the option of interest arbitration favourably.
As explained in this post, at York the party pushing for interest arbitration has shifted overtime. With regard to CUPE strikes, it has been the employer pushing for interest arbitration to end the strikes and CUPE has refused. However, in that case of a strike by full-time professors back in 1997, it was the union (YUFA) advocating for arbitration and the University refused, arguing that interest arbitration is inappropriate for universities:
Arbitration risks handing over the future of the institution, and the definition of a new contract for faculty, to a third party who cannot possibly appreciate the subtleties and complexities of a university such as York. University administrators and faculty must determine an effective contract and its budgetary implications through collective bargaining. 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. The arbitrator, unlike faculty and administration, is not accountable for making his or her decision work. Arbitrators do not have to find the money to meet the costs of their judgements, nor must they live with the impact of their decisions.
In any event, if history is any indication, it is unlikely that the parties in this present strike will voluntarily agree to refer the bargaining dispute to binding arbitration. My guess would be that York proposes this at some point soon and CUPE rejects the offer.
Option 4: An Industrial Inquiry Results in a New Agreement
In 2018, the Liberal government appointed noted labour mediator/arbitrator Bill Kaplan as an Industrial Inquiry Commissioner under the rarely used section 37 of the Labour Relations Act. He spent a few days meeting with CUPE and York officials and then issued his report. That report basically concluded that no negotiated deal was possible because the parties have fundamentally different perspectives on bargaining and the issues in dispute. You can read the report here. Mr. Kaplan recommended binding interest arbitration, while also suggesting that CUPE re-assess its philosophy of collective bargaining (not surprisingly, CUPE took exception to that part of the report and to the recommendation for interest arbitration).
For the government, appointing an Industrial Inquiry Commissioner makes some sense, because either the Commissioner brokers a deal or if not, the report becomes more evidence to justify legislative intervention. Will the Conservatives try this move again? Uncertain, but what does seem more certain is that if they do, there’s little reason to believe that person will be any more successful than Mr. Kaplan in getting these two parties to resolve their differences.
Option 5: Back to Work Legislation
The 2018 CUPE strike eventually ended when the government introduced back to work legislation. That move came in May 2018, about 2 months into the strike when fears of a lost term were becoming a real concern. The law was called Back to Class Act (York University) and you can read it here.
The law ended the strike and banned any further strikes and then referred the dispute to an interest arbitration who was granted authority to select the model of arbitration used and to issue a binding award. Ultimately, arbitrator Jim Hayes was appointed and he attempted to mediate a settlement, but that provide impossible. Thereafter Mr. Hayes issued his decision imposing a 3 year collective agreement. You can read that decision here.
The constitutional landscape has shifted since 2009, since the Supreme Court ruled in 2015 that the Charter of Rights and Freedoms protects a right to strike. This raises the potential stakes for a government that introduces back to work legislation, because the legislation could possibly be struck down as a Charter violation. However, the risks are not as high as they were when the Conservatives introduced a wage freeze statute (Bill 124). That law was ruled unconstitutional and at last check, the damages to compensate public sector workers for lost wages is about $4 billion! With back to work legislation, the matter is referred to arbitration where the CUPE members will no doubt receive some of what they want. How the damages would be calculated in the event of back to work legislation being ruled a Charter violation is uncertain in this case.
The possibility of back to work legislation being ruled unconstitutional certainly exists and for this reason it is likely that the government will not rush with this option. No doubt, the Ontario Conservatives would prefer the parties to resolve this matter themselves. However, if the term is threatened and things begin to get nasty, the possibility of legislatively intervention increases. The government will want as much evidence as possible to make a “Section 1” argument that the legislation was justified. The recent unexpected (and somewhat suspicious) police presence on the picketing line resulting in the arrest of a picketer would no doubt be part of that story. As far as I know, York has never lost a semester due to a work stoppage.
So those are the options. What is your guess as to how York CUPE 3093 Strike 2024 comes to an end?