REPORT
ON CAUT FORUM FOR CHIEF NEGOTIATORS 2008
BUILDING
A DEFENSIBLE COLLECTIVE AGREEMENT
APRIL
4-6, 2008 OTTAWA
An information-packed weekend, with presentations by CAUT assistant executive directors and by experienced negotiators from various associations. It began with a look at the Character of the Collective Agreement as telling the story of the history of a union and the peculiarities of its relationship with the employer, with old language embedding once but perhaps no longer relevant positions vis-à-vis the employer, and conspicuously silent on areas of concern to a more diverse and aware membership. We were encouraged to review any article in our CA that had not been targeted in the last two rounds of negotiations, to compare it with more recent norms expressed in other CAs or CAUT model clauses, to see if there is need to update them; also, to identify the silences in our CA, review grievances during the life the CA, and use the CA to identify groups whose interests are targeted in any given article and who are best suited to advocate for language that will vocalize their concerns.
Preparing Defensible Language focused on applying the same ‘test of reasonableness’ to our language as we might expect from an arbitrator. Terms such as ‘reasonable’, ‘just’, ‘fair’ and ‘equitable’, often disregarded as ‘weasel words’, actually provide an arbitrator with grounds to test the case of the employer in an arbitration. In the context of an arbitration, the use of such terms have a specific meaning (e.g. ‘reasonable’ means that the employer cannot act in an arbitrary manner disregarding the terms and conditions of employment set by the CA.) It was suggested that the inclusion of such ‘arbitrable’ language as reasonable, just, fair and equitable, was better than attempting to (over) specify what would constitute such in a particular situation.
Asserting and Strengthening Exclusive Agency, Ensuring Fair Procedures in Collective Agreements and Common Weaknesses in Collective Agreements shared a common concern in drawing our attention to how the CA is a modification of management rights, the means by which we gain control over the terms and conditions of our employment, and the ever-present need of the Association to strengthen its collective right to represent its membership in that relationship, and to assert that right in all first instances in which an individual might stand in relation to the employer, especially in the initial contact with a new hire, the initial salary placement of an new hire, and the initial step of a grievance procedure. One must fight both the professional tendency of academics to feel they do better for themselves individually than collectively, as well an employer who knows the value of intervening in the relationship of a member to Association. It is important in the first place to acquire the right of the Association to meet with a recommended candidate before they engage in final contract negotiations with the Administration; more importantly, that we negotiate the factors for determining the initial step placement for all hires, and procedures for ensuring they are adhered to; we are also advised to negotiate a standard minimum floor for startup funds for all hires, to prevent the inequity of variances of up to 10 or more thousands of dollars.
Ensuring Fair Procedures requires that no decision-maker may be involved more than once in any stage of a single case. Also, ensuring that we have ‘full carriage rights’ or the exclusive right to represent our members in grievance proceedings. Associations were particularly urged to ensure their CA does not include a ‘stage 1’ grievance procedure where the individual first meets with an administrative officer (Dean, Director, VPA) to resolve a potential grievance—such a first stage can often make it difficult for the union to pursue a grievance successfully at a later stage. The Association must ensure its right of exclusive agency in grievance procedures from the first stage—that first the member must speak with the Grievance officer, not the Dean etc., and that the Association has the exclusive right to investigate or otherwise pursue a grievance on the member’s behalf, while recognizing the member’s right under labor law to sue the Association for failure of duty of fair representation if the Association decides not to grieve on the member’s behalf.
We were reminded of the importance of timeliness in grievance procedures, and how the timeliness of information can play a critical role in meeting procedural deadlines. We were therefore instructed not to fail to grieve any violation of information deadlines in the CA, that the failure to grieve an information deadline could result in a loss of right to grieve a case, whereby the Association might face a duty of fair representation suit. So we must make it a policy to forcibly enforce information deadlines; also, to acquire the right to receive information in a usable electronic form – satisfactory to the Association was one recommendation from the conference floor. Also, to ensure we have language guaranteeing access to all information necessary to protect our membership and enforce the CA. Finally, we were warned not to lean too heavily on past practice, especially as grounds for grievance—that it was difficult to demonstrate whether a practice was widely or consistently practiced, or if it was known to senior administration.
Turning to an examination of Common Weaknesses in Collective Agreements, we were advised to examine our CA to see how close policies, procedures, and salaries and benefits, etc., approach national norms, and to ensure that the employer cannot institute a new policy that is inconsistent with the terms and conditions of employment in the CA without the prior agreement of the Association; that we are approaching the norm of 100% employer-paid benefits, 100% sabbatical salaries, parental and adoption leaves; compassionate leaves; that we have protection for members temporarily outside the bargaining unit—other associations were warned of the dangerous precedent Acadia’s recent arbitration decision on the CW case has set for tenure, and of the need to change their certifications if need be to guarantee the right of tenure and representation to our BoG reps and academic administrators.
Plenty of anecdotal discussion was generated by the advice offered from an experienced hand on Building an Infrastructure of Support for Negotiations and the Creation of a New Collective Agreement. Structured partic-ipation is the key to success in building support in an association, especially when it comes to negotiations. It is the job of the Executive and Chief Negotiator to show leadership in building membership support for negotiations by way of keeping the membership informed and involved in the process of and progress of negotiations, within a highly structured and centrally controlled organization. There must be a balance struck between the need for members to be informed and involved, and the Association’s need to be highly organized and guarded in its relation to the employer. In the dissemination of information, we must be mindful that the administration pays much more attention to what is released than the membership. Beware of the vote. Voting on the election of negotiators may value personal popularity over experience; releasing a vote on proposal priorities can completely undermine the ability of the Negotiating Team to negotiate less supported proposals.
In closing, we took a look at Recent Bargaining Trends in salaries and workload. Significant gains have been made in both areas—the deterioration of salaries by inflation has been offset by impressive improvements in salary scales and grid compressions. But when compared to the private and public sectors, education, health and social services are not making any real headway. Universities are prone to double booking – turning their surpluses into deficits by transferring $ from Operating budgets to Capital budgets—whatever we leave on the table they spend on other projects. Nationally, universities spent $900 million less than they earned in 2007 (the difference between 24.3 billion total income and 23.4 billion in total expenditures)—$ that could have gone to salaries.
Workloads have been reduced to where the maximum is normally 3/2 and many have 2/2. But it has cost us dearly in two ways: foremost, we are helping to build a 2 tier university, unbundling our work into teaching-only and primarily-research streams. We argue a reduction of teaching load as enabling more research—which increases the emphasis on research as the only real basis for RTP, and regards teaching loads as a penalty for failing in research. Meanwhile, CAS are reduced to teaching-only positions with 3/3 workloads and no hope of tenure-track positions, as they become research-only and less profitable to the university. US universities have been openly accused of ‘consumer fraud’, with only 30% tenured faculty doing mostly research, and students being taught by non-professorial sessionals. We must resist this trend by arguing for the integrity of our profession as involving the pursuit and dissemination of knowledge—research and teaching. Graduate studies are in research—why then should we offer our graduates teaching-only positions?
There were a great number of first-time or groomed-to-become chief negotiators at the conference, indicative of a generational change in many Associations. There was a strong feeling of the handing on of hard-won wisdom and experience to a grateful and uncertain new generation of negotiators. Academic unions have made great gains over the years in improving the terms and conditions of university employment for their members. Even so, now more than ever it seems that these gains are being threatened by the commercial exploitation of education as a marketable service. It is this trend, above all, that the Association must strive to protect our members and our academic institution against.
Respectfully submitted,
Vernon Provencal
Past-President, AUFA Executive