UPDATE: March 27 2018
On March 27, York University exercised its legal right to request that the government conduct a “final offer vote” (see below) on its last offer put to CUPE. This right is found in Section 42 of the Labour Relations Act. York can only do this once. In 2015, CUPE voluntarily took an employer offer back to the membership for a ratification vote. At the time, one of the three units (Unit 2) voted to accept the offer whereas Units 1 and 3 voted against the offer and the strike continued for them. The return of Unit 2 led York to reinstate many classes that had been cancelled until then. This time, York ordered all classes that could continue to continue right from the start of the strike.
I have no prediction of how the vote will go this time. York is hoping that a slim majority will accept the deal, or at least that one or more of the units will accept it, which would make it much harder for the remaining striking unit(s) to hold the line. In these circumstances, when there are 3 units involved, a request for a final offer vote is also a strategy of divide and conquer. On the other hand, if all three units soundly reject the employer’s offer, then that sends a strong signal that the employees expect the employer to move from its position. A strongly rejected result could also begin agitations at Queens Park for the government to intervene.
A lot is on the line. We will watch the result carefully.
March 13 2018
Here at York University, we are once again dealing with a strike of CUPE 3093 instructors.
In 2015, York University decided to cancel all classes. At that time, Vice-President Rhonda Lenton explained that it would cause confusion if some classes continued and some didn’t (from a Toronto Star article”:
York vice-president Rhonda Lenton said it’s only fair to cancel all classes because “there is potential for confusion when some classes are cancelled (taught by CUPE 3903 members) but others are not (taught by tenured faculty members).”
In 2018, the University leadership (with Rhonda Lenton now as President) has
How Will the York Strike End? (Photo: Toronto Star)
reconsidered and has ordered that classes continue regardless of this confusion.
[There is an interesting internal debate raging at York about which body at York has authority to make the decision about class cancellations during a strike. Is the Board of Governors? The President? The Senate? The Senate Executive Committee? Given York’s long history of strikes, it is stunning that this remains a disputed question. This issue may end up in litigation, so we will keep an eye on that.]
As a result of York’s decision to continue classes not taught by CUPE instructors, we have many classes cancelled, others not cancelled, and the list fluctuates from day to day. Professors have authority to cancel a class if the academic integrity of the course is undermined due to the strike. Under York rules, no student can be required to cross a picket line and students can’t be academically punished for not attending class. So while a professor may be required to continue to teach a course, he or she cannot teach the course in such a manner that a student not attending would be disadvantaged. As you can imagine, this scenario does indeed create the very confusion that President Lenton was concerned about in 2015.
We are now two weeks into the 2018 York University CUPE 3093 strike, still a long way short of the record 85 day strike in 2008-09. This strike will end, probably in the next few weeks, but how? Let’s review the alternatives.
The Parties Reach a Voluntary Deal
Ideally, CUPE and York return to the bargaining table and reach a deal on their own. 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.
A possibility is that something provokes the parties back to the bargaining table. The most likely example is that the Liberals threaten, or even introduce, back to work legislation. Back to work legislation would order the strike over and impose interest arbitration as the method for resolving the outstanding issues. In 2009, the Liberals introduced Bill 145, York University Labour Disputes Act, 2009 after an 85 day strike by CUPE 3093. That legislation spurred the parties to reach a collective agreement before the arbitrator did so.
Back to Work Legislation
Back to work legislation is a possibility if the government sees no progress being made in bargaining and the school year is threatened. The Liberals are hoping it is does not come to that, not only because they want to be perceived as respecting the collective bargaining process, but also because they are weary of violating the Charter ….again. As readers of this blog and The Law of Work (Chapter 48: The Charter and Collective Bargaining) know, the Supreme Court of Canada has in recent years recognized a Charter right to collective bargaining and to strike. All back to work legislation must now withstand Charter scrutiny, and the Liberals would like to avoid further Charter litigation if possible. That threat will need to be balanced against the political consequences of being perceived as “standing by” and “doing nothing” as students lose their semester.
Voluntary Interest Arbitration
The parties can 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.
In 2018, York University is the party that has proposed referring the dispute to interest arbitration. It even has a webpage praising the great benefits of interest arbitration. York writes:
Interest arbitration is a legitimate and time-tested part of the collective bargaining process. It does not get in the way of the labour negotiation process.
However, back in 1997, YUFA (the faculty union at York) proposed interest arbitration to end a dispute and York had a very different attitude. Here is what York had to say then about interest arbitration:
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.
So take York’s sudden fondness for interest arbitration with a healthy dose of cynicism. York wants interest arbitration this time because, this time, it is York trying to keep the status quo and CUPE hoping to move from that model. Given that there has been three strikes in a decade, one has to wonder how well the status quo is working as a labour relations strategy at York.
Final Offer Vote
The Labour Relations Act (section 42) grants employers the right to insist that the government conduct one vote of the bargaining unit on an offer that was put to the union in bargaining. This is known as a “final offer vote”. An employer will use this option when it believes that a majority of employees would vote for the employer’s offer but the union is refusing to the put the offer to a vote.
A union may refuse to put an employer offer to vote if it believes it is an inferior offer that will divide the bargaining unit. Unions prefer a collective agreement that has a high level of employee support because this creates more stability and member satisfaction. An employer in the middle of a work stoppage may be satisfied with a deal that ends the stoppage, even if that means only 51% of employees accept the offer. That is exactly how the college instructors’ strike ended in 2010. In a final offer vote, 51% of the employees accepted the employer’s offer. However, the final offer vote strategy failed spectacularly in 2017 when college instructors voted down the colleges’ final offer by a margin of 86%. A failed final offer vote can cause the union and its members to be emboldened (and angered) and creates the expectation that the employer will sweeten the offer.
The final offer vote seems an unlikely option to end this York strike, at least for now. In 2015, the CUPE 3093 bargaining team took back an employer offer to the membership and it was rejected by two out of three CUPE units and the strike continued. This history should suggest to York that CUPE’s bargaining team does not unreasonably refuse to put reasonable employer offers to the membership. CUPE is presumably still waiting for that offer to come.
How do you predict the 2018 York CUPE strike will end?