CUPE may have been the victim after all and NOT responsible for the 15 week strike. Imagine that astounding turn of events!
What may be the most bizarre circumstance of all of this is that Catherine Swift President and CEO of the Canadian Federation of Independent Business may turn out to be CUPE Windsor's "Woman of the Year" as she testifies on their behalf in their back wages claim against the City of Windsor if that ever gets going depending on what legal counsel advises.
In any event, the City's seemingly well-constructed strike planning may be falling apart as more facts come out.
Let me explain.
In going through my database, I saw this item in mini-Gord's column:
- "CUPE's about-face
By Chris Vander Doelen, June 2, 2009
Embroiled in their seventh week of a disastrous strike against the City of Windsor, the union is now pleading for binding arbitration as the only way to "settle" the dispute.
Why the opposite stance in the two strikes? CUPE felt it was winning the strike against York U when Moist denounced arbitration as an unprincipled attack on the sacred process of collective bargaining.
In Windsor, the union is losing. It's facing an unprecedented backlash from the public in a town they had hoped was still dominated by its organized labour groups."
That "seventh week" comment immediately rang off an alarm bell in my mind. It seemed that the Union was NOT losing because of public backlash as the myth-spinners were weaving but because of something else revealed by Councillor MOM and, in effect, confirmed by Junior's Mayoral rift although he has not yet had the guts to speak out to tell us what caused it:
- "Basically council has been split on the strike issues and we have requested recorded votes on all motions (consistent votes at 7-4). Last week was rare with a unanimous motion not to go to binding arbitration and to reaffirm faith in our bargaining team.
Last week we made the decision to allow our team more freedom to negotiate a contract that is fair to both parties and we also agreed that binding arbitration is not the right path for us. I strongly believe that for the past 7 weeks council has not given our negotiating team the tools to truly negotiate. We have set parameters for them but have not given them the autonomy required to get a contract. In essence they have been negotiating with themselves.
Binding Arbitration means a third party comes in and decides what the contract will be. The City is worried that if we go to arbitration we will lose...
I will only speak for myself when I tell you that all I ever wanted was to treat our staff with respect, negotiate a fair contract and keep them working. I never thought we would end up in a 7- week (going on week 8) battle over post retirement benefits or wage increases. I naively thought we could reach a middle ground early and get everyone back to work."
It is a damning indictment against the City. I am sure that you saw the 7 week comments by Councillor MOM and the reason for not going to arbitration: losing. Nothing else.
So if you were the CUPE Presidents and saw that the City was NOT negotiating at all, what other choice would one have in that poisoned atmosphere other than to ask for arbitration, probably by having the Province intervene. But of course it did not since the City did not ask for it as Dwight Duncan told us. (Poor Dwight when the role of the Province is finally revealed!).
During the many weeks that CUPE was requesting arbitration, what excuses were given by our Mayor and by members of the Press to oppose it and were they valid ones. Read on and you decide. Note I did a bit of fisking :
- "It is my opinion not to leave this in the hands of a third party that's 400 or 500 kilometres away," Francis said Saturday night. "It is the responsibility of the parties to reach an agreement. The city of Windsor is prepared to sit down and reach an agreement." [Ah, the old Buy Foreign ruse except when it comes to the City hiring consultants who live that far away and more. Agreements cannot be reached if one side does NOT negotiate]
- On the union's suggestion for third-party arbitration, Francis compared it to playing Russian roulette.
"If we take this issue and give it to a third party, we have to live with that decision forever. We're not prepared to do that." [Forever is only to the next contract. Why is it a near-death experience if the City has a strong case. If the case is not good, then as a Windsor lawyer has said---"We weren't successful, but I would suggest to you it was worth a try."] - "Binding arbitration means throwing in towel" Gord Henderson
The big pitch from CUPE this week is that they want the dispute sent to binding arbitration for an "impartial third-party decision." That's a laugher. In this province binding arbitration typically means some tweedy, left-leaning university prof who has never worked in the real world winds up giving the union, impartially, exactly what it wants, regardless of the municipality's financial status. [Oooops, Gord not right] - Caving in to demands by Lewenza [Senior] and CUPE to end the impasse by agreeing to third party arbitration would represent a cowardly and expedient "political copout," said Francis.
"I have a tremendous amount of respect for the collective bargaining process and that's why I indicated to them that I'm not prepared -- and city council is not prepared -- to abrogate our responsibility and turn over the collective bargaining process to a third party that lives 400 to 500 kilometres away," said Francis. [Except Councillor MOM said there was no negotiating so where is the respect for the process] - Mayor Eddie Francis said council was unanimous in a closed-door vote last week to reject having an outside arbitrator decide what workers should get.
The same vote still sailed through Monday night, but this time on a vote of 8-3.
"A solid majority ... says negotiate at the table," said Francis. "It would be politically expedient, it would be a political copout, to put it in a third-party's hand." [For a lawyer to say such a thing about a "Judge" is incredible] - [Mini-Gord] Mayor Eddie Francis said Monday the city is opposed to arbitration because the process almost never serves the interests of taxpayers.
"The history of arbitrators is one of giving away the farm -- they're known to give away the farm," Francis said. "Rarely are municipalities ever successful in arbitration."
True, arbitration could easily end the strike.
But it wouldn't settle or solve the main issue facing Windsor, which is balancing the budget without raising taxes in a climate of collapsing tax revenues." [Oooops again not correct mini-Gord. Could it be that they lose because their case is bad and it is a try-on?] - Francis said he and council are not prepared "to surrender our decision-making" and that CUPE should be more interested in negotiating a settlement rather than focusing on a public relations campaign.
"The only ones I'm confident in protecting the city's interests and the taxpayers' interest is the team we have at the negotiating table," he said. [Hmmmm.. re-read Councillor MOM's comment re the negotitating team] - Francis said the idea is a non-starter. He said back-to-work orders usually require the parties to go to binding arbitration and that process would be "giving away the farm" for the city. [The end-result was that CUPE won. EI-EI-YES]
- [Editorial] He [Ryan] knows binding arbitration is a tool for settling disputes with those who cannot strike because they deliver essential services -- police, firefighters, nurses. That is not the case here. [Completely wrong as Ms Swift and Provincial legislation demonstrate]
- CUPE has been urging binding third-party arbitration, but the mayor said council will not accept putting an outsider in charge of a new contract. [The City can choose the arbitrator. It is not a unilateral decision by the Union. We will find out eventually why the Mayor was so afraid of someone else making that decision.]
- You know, we haven't even discussed that. The legislature is not scheduled to be back for awhile," he said Tuesday.
Duncan, Ontario's minister of finance and revenue, said it's clear that the city doesn't support binding arbitration, which local CUPE leaders Jean Fox and Jim Wood have been urging.
The strike, which has been going on since April 15 and involves inside and outside city workers, was followed by a city strike in Toronto last week.
Ontario Premier Dalton McGuinty said last week the legislature won't end the strike in Toronto and that it's better if both sides have the opportunity to talk.
Mayor Eddie Francis said he supports Duncan's statement.
"I think ... it's probably the right decision given the fact that to do anything otherwise would really short-circuit the collective bargaining process," he said, adding that, if strikers were forced back to work, it would set a bad example for any future strikes. "People would ... hold out until the legislature steps in." [Poor Dalton and Dwight....Their role may come out too. It looks like they cared only for the City Government, not its workers or citizens. Someone may have read the polls incorrrectly. Not negotiating sets a bad example too] - [Star Editorial] The individual arbitrator is supposed to be neutral. But the best evidence provided so far suggests that this approach will result in a settlement that the city doesn't want. [Whose evidence is that?]
According to the Mayor and the Star, everything was stacked up against the City. Our Mayor had to have the responsibility to make the deal through the collective bargaininging process or else the City would be sold out by some leftist, "foreign" arbitrator who would give CUPE everything.
Right!
Nope....WRONG. And here is where Catherine comes in from her July 17 Press Release that CUPE members should now be applauding since it rips to shreds the anti-arbitration argument:
- "As you Chair a special meeting of Council to address this latest development, I urge you to continue to stand up to the selfish demands of the union by calling on Premier McGuinty to legislate the striking civil servants back-to-work.
Before the naysayers try to dissuade you from taking this stronger position, citing arbitration as a more costly option, the province can and does set parameters around arbitrated settlements, including the "ability of the employer to pay."
In legislating an end to the recent strike at York University, the province put in place the following criteria for the arbitrator to follow:
In making an award, the mediator-arbitrator shall take into consideration all factors that he or she considers relevant, including the following criteria:
1. The employer's ability to pay in light of its fiscal situation;
2. The extent to which services may have to be reduced, in light of the award, if current funding and taxation levels are not increased;
3. The economic situation in Ontario and in the Greater Toronto Area;
4. A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment;
5. The employer's ability to attract and retain qualified employees.
That language is taken right from Section 15 (2) of the York University Labour Disputes Resolution Act, 2009.
It's too bad that Catherine ignored the City of Toronto Labour Disputes Resolution Act, 2002 that Chris Schnurr pointed out in his BLOG.
http://chrisschnurr.wordpress.com/2009/05/28/why-not-arbitration/
It says specifically in very similar language:
- 11. (1) The employer and the listed bargaining agent or agents that represent employees in a bargaining unit for which no new collective agreement has been executed may, by unanimous agreement, appoint one person as a mediator-arbitrator for the purposes of this Act.
(2) If no appointment is made under subsection (1) within five days of this Act receiving Royal Assent, the Minister shall forthwith appoint one person as a mediator-arbitrator for the purposes of this Act and notify the parties of the name and address of the person appointed.
13. (1) The mediator-arbitrator shall hold meetings with the parties to discuss the disputes relating to each bargaining unit for which no new collective agreement has been executed.
(3) In the meetings held under subsection (1), the mediator-arbitrator shall try to assist the parties to settle any matter that he or she considers necessary to conclude a new collective agreement with respect to the bargaining unit.
14. (1) Immediately on receiving the notice under subsection 13 (4), the parties shall be deemed to have referred to the mediator-arbitrator, with respect to each bargaining unit for which no new collective agreement has been executed, all matters remaining in dispute that may be provided for in that collective agreement
(7) If the parties execute a new collective agreement with respect to the employees in a bargaining unit to which this section applies, they shall notify the mediator-arbitrator of the fact and the arbitration proceeding with respect to that bargaining unit is thereby terminated.
17. (1) An award by the mediator-arbitrator under this Act with respect to the employees in a bargaining unit represented by a listed bargaining agent shall address all the matters that he or she considers necessary to conclude a new collective agreement with respect to those employees.
Criteria
(2) In making an award, the mediator-arbitrator shall take into consideration all factors that he or she considers relevant, including the following criteria:
1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the award, if current taxation levels are not increased.
3. The economic situation in Ontario and in the City of Toronto.
4. A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997. (Section 1.3 of that Act says one of its purposes is: 3. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.
I do not know about you, dear reader, but I have difficulty understanding why arbitration was so bad. There was still the opportunity even during the process to arrive at a collective agreement by bargaining and in fact that was encouraged. Specifically, the Legisaltion required the City's financial position to be considered. A "local" arbitrator could have been retained by agreement as well.
Now I am sure that George King as an experienced labour lawyer would have pointed out all of this to our Mayor and presumably he or the Mayor would have informed Council. I am sure they did since Councillor MOM only gave ONE reason why the City was afraid to arbitrate.
Interestingly, here is what CUPE was looking for as reported by the Star on May 25:
- "According to Francis, Local 82's last proposal was a four-year deal that included a $2,000 upfront payment; wage increases of 2.5 per cent, 2.5 per cent and three per cent in successive years; a demand that the city match union contributions to create a post- retirement benefits fund for new hires; and guaranteed job security for life, a demand the union denies making. "
Take a look at the final deal....pretty close to it wasn't it! It probably all would have been worked out if there was proper negotiating, not the kind described by Councillor MOM. How do I know that? When the Mayor stayed out of it after the Protocol fiasco, an agreement was reached in about a week.
I don't get it. 7 weeks of non-negotiating, a poisoned relationship, a reasonable call for arbitration by the Union, the Mayor giving reasons for not arbitrating that to me do not hold water, legislation that can protect the City's interests, a Provincial Government looking at only one side of the equation and then a final contract very similar to what was proposed by CUPE before.
If someone asked me what I would think, my answer would be an easy one:
- GO HIRE AN EXPERIENCED LABOUR LAW LITIGATOR AND GET A LEGAL OPINION AS TO YOUR RIGHTS
CUPE and its members ought to have the same answer too. After all, it is only $300K per day they lost for 15 weeks. And for what?
Taxpayers who suffered through 15 weeks of inconvenience to perhaps get a $50 rebate cheque may also want some answers too.
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