Arbitration Proposed, Strike Date Set

(a.k.a. “King’s gambit declined; Counter-gambit”)

Today, OPSEU announced its proposal “to send all outstanding issues” in the current negotiations to binding arbitration, setting a strike date of February 11, if the College management declines the offer.  This was yet another unexpected move in a series of negotiations that has been marked by them, as the two sides test out the limits of the new legislation.  What might make this step different from the others we’ve experienced is that this one has been initiated by the union.

I should start by saying that — just like the management’s request that the union present an already-rejected offer to its membership for a vote — the union’s proposal isn’t something explicitly mentioned in the legislation, but there’s nothing in the legislation to prohibit it.

With this proposal, the union has seen-and-raised the college management’s recent demand for a vote.  It has now put the college management on its heels for at least a short time, as the colleges try to figure out (in only 10 days) a way to gracefully decline arbitration and yet avoid responsibility for ushering in a strike.

As well, the proposal serves to exploit the college management’s (strategic) description of its latest offer as a Final Offer, by threatening to actually make it the final offer, and arguing that — since the colleges will no longer change their position in negotiations — there is no need to remain at the table and no reason not to turn to arbitration instead of a strike, since all three previous strikes (in 1984, 1989, and 2006) ended with binding arbitration, whether mutually-agreed-upon or legislated.

In short, it gives both sides a chance to short-circuit the strike and arrive directly at the likely outcome of that strike (only without the messy striking bit).  And if the college management’s refusal leads to a strike that ultimately ends in binding arbitration, the colleges’ would have a hard time justifying that refusal afterwards.

So the question then concerns what each side stands to gain or lose.   The unions stand to lose nothing with this proposal: Binding arbitration would probably be the best reasonable outcome of a strike, so the unions stand to gain that outcome sooner than expected (without the messy striking bit).  The colleges, on the other hand, stand to lose quite a bit from binding arbitration, since an arbitrator would be hard-pressed not to implement the recommendations of the Workload Task Force (like academic freedom and collegial decision-making), which were approved by both the management’s and the union’s representatives.

For that reason, don’t look to the colleges to approve binding arbitration.   (However, they might recommend non-binding arbitration, which could conveniently last at least until April, and therefore set up the possibility of locking out the faculty for part or all of the summer.)  Binding arbitration is close to a worst-case scenario for the colleges, since it puts major issues into the hands of somebody they don’t control.  As well, they might reason that they may as well make the union suffer and test the members’ resolve before giving into that possibility.

And since binding arbitration is now on the table (to let the college management prevent or end a strike at any time by agreeing to it), then management also has nothing to lose by holding a membership vote, first.  If the faculty vote in favour of the “final offer”, the college management wins entirely; if they vote against it, then the college is no worse off than it would have been had it accepted binding arbitration in the first place, or than it would be at the end of a strike.  For that reason, I expect to see the college management call a membership vote before it agrees to binding arbitration.  After all, it simply has nothing to lose.

Which brings us to the final equation: The union members themselves.  If the college management holds a vote on their “final offer”, then the faculty are left with two choices: Voting for the final offer or agreeing to binding arbitration.  Will the faculty recognize that a contract achieved through binding arbitration literally could not be worse than the offer on which they’d be asked to vote?  Would they realize that they have truly nothing to lose by voting against that offer?  After all, binding arbitration would give them about an 80% chance of getting at least one of the following: a) academic freedom, b) SWFs to limit the workload of partial-load faculty, c) faculty power over determining course evaluation techniques, or d) an extra 0.5% of salary per year.  Voting for the management’s final offer would turn that into a 0% chance.

But were the college management to decline binding arbitration in favour of a membership vote, and were the faculty to vote against the offer, would that lead to a protracted strike, prior to binding arbitration?  Possibly, if the province hoped to take advantage of not having to pay professors for a couple of weeks, in order to cover some of the costs of the arbitrated decision.  On the other hand, during that strike, the colleges would have no power to compel a faculty vote, and possibly no power to alter their “final” offer, so it’s unclear that they would really stand to gain very much by interrupting classes for weeks, when they could bring things to the same (inevitable) outcome much, much faster.

I’ve got to admit, it’s a pretty good move.  The college management team says that their offer is fair and that they wish to avoid a strike; the union’s offer of binding arbitration is a pretty good way of testing the sincerity of both of those statements.

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