Backgrounder

Collective agreement negotiations occur between a bargaining agent (the union) as the certified representative of a group of employees under the Labour Relations Act (a bargaining unit) with the employer.

The current strike is actually three strikes involving three distinct bargaining units, each with its own collective agreement.  While represented by one Union, each of these bargaining units (Units 1, 2 and 3) is a separate and distinct group of employees under the Labour Relations Act.

• Unit 1 consists of full-time graduate students employed as TAs and course directors.
• Unit 2 consists of individuals employed as contract faculty who are not full-time graduate students
• Unit 3 consists of full-time graduate students employed as graduate assistants in research, administrative or clerical work.

CUPE 3903 approaches collective bargaining in a unique manner. Notwithstanding the Labour Relations Act obligation to fairly represent employees in each bargaining unit (section 74), the Union insists on bargaining the collective agreements of all three units at the same bargaining table.

CUPE 3903, at the first meeting for these negotiations on September 8, 2017, informed the Employer that it insisted that negotiations be strictly conducted in accordance with its “pre-approved bargaining parameters.” These parameters were made a precondition of bargaining and include:

2. CUPE 3903 reserves the right to have members in the bargaining room to observe the bargaining process.
3. Decisions that affect the relationship between membership and the Bargaining Team and the Bargaining Team and employer are determined by the membership.
4. All bargaining units will bargain together to strive for the best agreement for all units and will not privilege one unit at the expense of another unit. In keeping with past practice, no one-on-one or small group/unit-specific bargaining will take place with the employer.
5. Our Bargaining Team will not make agreements with the employer that will oblige Bargaining Team members to take a particular view of, or position on, any matters related to bargaining.
6. Bargaining meetings between CUPE 3903 and the employer will take place in rooms large enough to accommodate all Union members that wish to attend those meetings. These rooms will be fully accessible, and properly equipped with power outlets for members wishing to take notes on their computers.

The Union has maintained these parameters throughout bargaining and the strike.  It has done so notwithstanding the recommendations from the Industrial Inquiry Commissioner and the Employer’s Labour Board Response of March 23, 2018 and unfair labour practice complaint of May 17, 2018.

The Industrial Inquiry Commissioner, on May 4, 2018, wrote:

The other outstanding union proposals, while complicated and contentious, are ultimately more amenable to settlement in collective bargaining, or before the OLRB, but not in a bargaining regime where the three units – with separate membership and clearly distinct bargaining objectives (with limited pan-unit exceptions of no real factual significance) – have agreed that there is no resolution with one unless there is resolution with them all. 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. [Emphasis added]

Following the Industrial Inquiry Commission Report, which process it had welcomed and embraced, the Union rejected all of the Commissioner’s recommendations.

The University filed a further unfair labour practice complaint on May 17, 2018.   This asked, among other things, for the Labour Board to require unit-by-unit bargaining meetings so as to provide an appropriate opportunity to address the issues specific to each employee group.  According to the current requirement under CUPE 3903’s bargaining parameters that all three units bargain together, the three units are treated essentially as one notwithstanding a lack of community interest on employment issues.  By way of example, the Employer has proposed an increase in Course Director positions in Unit 1, which positions provide Unit 1 members with a valuable professional development opportunity.  The combined Union bargaining team rejected the proposal primarily on grounds that it might have a negative impact on employment opportunities in Unit 2.

The request to meet with the Unit 2 bargaining team to discuss its outstanding issues and the use of arbitration to resolve any that remain aims to enact just the steps identified by the Commission as a means by which the parties could resolve the Unit 2 strike and, potentially, begin to reach a resolution of all three strikes.  The Industrial Inquiry Commission Report noted:

While there are numerous outstanding matters that have led to the standoff, the key issues revolve around Unit 2 and its job security demands. It is most particularly, but not exclusively, in these demands that one sees the clash of values. Indeed, it is fair to say one sees the almost complete absence of any shared core values, academic or otherwise, for example in qualifications required for contract postings and, especially, in tenure stream recruitment: negotiated minimums of Unit 2 contract faculty conversions  (CUPE) versus open search (York), to name just two. It is this clash that makes it impossible for the parties to freely negotiate a collective agreement.

The University has also asked that bargaining not occur with an audience.  Preconditions 2 and 15 of the Union’s imposed parameters establish a process of “open bargaining” and these have combined with the second half of parameter 4 to preclude effective discussion, comment, questions or attempts at dialogue.   The Employer bargaining team in this round of negotiations was forced to raise issues arising out of live tweeting, photographing and the posting of offensive and derogatory comments by audience members and when this occurred the Union denied accountability for the actions of the audience. Given the ongoing personalization of these negotiations by CUPE 3903 members on social media and at the picket lines, effective negotiations ought to be conducted in a closed forum.