Dude, Where’s My Contract?

So, do we have a Collective Agreement or not?

Well, as you may remember (because hey, that’s how trauma works), there was a vote in February, and 50.?% of voting faculty opted to accept the latest offer that had been put before us.  That offer was only slightly different from the contract that had been imposed upon us in November, which means that the word ‘offer’ might not necessarily be the best word.

But I digress.  We voted, and we voted to accept the offer drafted by the management.  So we have a Collective Agreement, right?  Well, um… kind of.  Which of course means… no.  There’s still some disagreement about what specific terms we voted to accept.  And since that’s still being debated and decided, it might be premature to say that there’s a Collective Agreement, by which both sides agree to be bound.

Let me explain.

As you may remember, the offer that we voted to accept was given to us on sheets of paper (or e-paper) that had two columns.  The left-hand column had the legalese, and the right-hand column had explanatory notes in italics, to help voters understand the legalese, as you can see in the excerpt below:

So what?  Well, the question right now is whether or not the italicized explanatory notes are part of the contract: Whether they are a part of the offer that the membership voted to accept, and whether they should be treated as part of the agreement between the colleges and their faculty.

To break down the two sides, the colleges’ bargaining team maintains that the contract that the faculty voted to accept included only the legalese.  The italics, they say, weren’t part of the offer, and weren’t what the membership voted to accept, and should therefore be removed from the final, published version.

On the other hand, the union’s bargaining team maintains that the italics were part of the offer, and were essential to members’ understanding of the offer that they voted to accept, and that they must therefore be included in the final document.

And the rest of us ask… Why does this matter?  Well, it matters for a couple of reasons, but the most concrete reason involves grievances that get taken to an arbitrator.

To put it bluntly, the italicized explanations typically put labour-friendly spin on the legalese, and interpret the detailed terms in language that emphasizes the rights  of the workers.  So, if any prof chooses to grieve a perceived violation of the contract, the presence or absence of the italicized explanations might affect whether or not an arbitrator rules in favour of the prof, since those explanations put a very specific, deliberate, prof-friendly interpretation on the specific terms.

Looking at the example that I excerpted above, there’s actually a fair bit of interpretive difference between what’s written on the left and the explanation on the right.  The italicized explanation makes reference to a collegial process of determining evaluation factors, but the concrete details on the left outline a process whereby the chair consults faculty before making a decision on her or his own.  There’s a fair bit of difference between collegiality (which refers to shared power) and consultation (which does not) – and grievances could very easily stand or fall on that difference.

So Who’s Right?

The question remains: Should the italicized descriptions be written into the final contract?

The college management’s bargaining team says ‘no’, because the presence of a sentence at the beginning of the offer that was mailed to faculty, which reads: “Changes to the previous collective agreement are underlined and bold”.  Since the explanatory notes aren’t underlined or bold, management side says that those notes therefore shouldn’t be understood to be part of the new agreement.

There’s only two problems with this interpretation: The first as that the offer contains several changes that are neither underlined nor in boldface (like, for example, all of the changes in salary).  The second problem is that, according to that sentence, the fact that those notes aren’t underlined or in boldface doesn’t mean that they aren’t part of the offer; it only means that they’re not changes to the previous Collective Agreement.  A prof would be perfectly justified in reading the offer and interpreting the italicized notes to have been unchanged leftovers from the previous Collective Agreement, and therefore part of the offer on which he was voting

Personally, I believe that the explanatory passages must be incorporated into the final document, for three reasons:

The first reason is based in fact: The pages containing that offer that were sent to members and that were provided at the balloting stations for the Offer Vote contained the italicized descriptive language, with no explicit caution that that language wasn’t part of the actual offer.  The membership was asked to vote on an offer, as communicated to the membership included the descriptive marginalia – Therefore, the membership voted for an offer that included the descriptive language.  Any Collective Agreement that did not include that language would not be worthy of that title – it would be a contract that includes only a part of what the faculty agreed to.

The second reason that I think the descriptive language belongs in the Collective Agreement is rooted in principle: In my layman’s ignorance, I understand a contract to be governed less by the written word than by people’s understanding of what they are mutually agreeing to.  It seems obvious to me that when the faculty voted in favour of the offer, they understood that offer largely – perhaps exclusively – in terms of the explanations that were provided by the college’s bargaining team.  Consequently, those interpretations are very much what the faculty agreed to be contracted under, and that agreement ought to be integral to the eventual Collective Agreement.

The third reason why I think our ultimate Collective Agreement must include the descriptive language is that of precedent: When the offer was being mailed out to the faculty for approval in February, the union petitioned the Ontario Labour Relations Board, asking for those italicized comments to be removed (since they felt that those comments would prejudice the faculty in favour of the offer; a fear that may have been borne out by events).

But to justify the inclusion of those italicized explanatory notes, the college management’s bargaining team responds to the OLRB, explicitly stating that the notes must stay in, because “the explanations . . . form part of the offer” (emphasis mine).

The explanations form part of the offer.  That was the college management bargaining team’s position when the offer was being sent to the union membership for approval.  How curious that their position has changed, now that the faculty has voted to approve that offer.

*                      *                      *

But let’s recognize one thing: The italics say different things than the legalese does.  If they didn’t, then the colleges would have absolutely no problem leaving them in the final Collective Agreement.  The reason the colleges want the explanatory comments removed is because they might potentially limit the college’s power.

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