SFUFA President’s Message, Dec. 11, 2013

SFUFA’s Negotiations for Interest Arbitration, or, They Called Me a Fool and Maybe They Were Right


Introduction

 

The purpose of this communication is to report to SFUFA members our negotiations with SFU for “interest” arbitration in place of the existing “final offer” arbitration. I have pursued this goal on the basis that if SFUFA has a “special relationship” with our administration, then they should want to help us achieve what we would regard as a more equitable bargaining relationship.

 

You will remember that this special relationship was the principle argument against certification of SFUFA as a union. If we had this special relationship, then perhaps we didn’t need to unionize because the administration would do their best to look after our interests.

 

When I was elected president of SFUFA, I set out deliberately to see what the value of this special relationship really was in practical terms. We had just been through a 2 year contract negotiation. It ended in an arbitration where we got 2.0% and 1.95% over two years.

 

By contrast, UBC received 2.5% and 2.5%. U Vic recently received 2.0% and 2.0% plus an extra one time $1000 per member in each year. The general consensus was that we were disadvantaged by being restricted to final offer arbitration while UBC and UVic (and UNBC) had interest arbitration.

 

I set out to try to gain the same interest arbitration that UBCFA had, as a test of this special relationship. I reasoned that if our administration truly valued this relationship, they would try to get us this interest arbitration. Whether they succeeded or not, given PSEC and the current government’s attitude on public servant wages, was less important than whether they sincerely tried. If, however, they did not try, it would show up the “special relationship” as mere wallpaper.

 

The Nature of the Relationship

 

I have finally determined that the ‘special relationship’ – whether real or not – is really a secondary issue.

And it is now my wholehearted opinion that SFUFA should certify itself as a union.

 

This special relationship will not be an adequate substitute for us organizing in support of our own interests, as have 90% of other faculty throughout Canada.

 

How should I describe the relationship as I have come to understand it? I’d like to use a sports analogy. It could be hockey, football, baseball, or soccer – all the same. Two teams represent their own interests. They fight intensely against each other on the field of play. They do everything they can to win at the other side’s expense – even illegal or dubious acts resulting in penalties. At the end of the game, they shake hands. They embrace special friends on the other team. They may have a “special relationship” but it doesn’t, and shouldn’t affect how they play the game. This is the kind of special relationship I think we in SFUFA have with our SFU administrators.

 

In contrast, some teams “hate” each other, according to what you read in the paper. Our Vancouver Canucks seem to have this kind of feeling for the San Jose Sharks, for example. I guess they don’t kiss and make up and the end. There are more dubious acts, and more penalties, and negative feelings. This is the kind of relationship I observe between many unionized faculty associations and administrations down East (east of Alberta).

 

The point is that whether you have the “special relationship” or not, the game is played the same way. Not being unionized means here at SFU that after the battle, we metaphorically embrace, kiss and make up. If, however, we were unionized, we would be willing to trade that “embrace” for a set of rules that made the game a bit easier for us. And we would be taking responsibility for what we wanted and thought fair, like competitive salaries and better working conditions, rather than hoping the other team would voluntarily make our lives easier and better – helping us by scoring a goal on themselves, so to speak.

 

Interest Arbitration Negotiations

 

When I first approached the administration seeking interest arbitration for our next contract negotiations, they told me I was a fool. I had asked that they simply give it to us as an “altruistic gesture.” If we had this special relationship, they should want to help us negotiate in what we considered a fair process. We could both take our chances with the judgment of a neutral arbitrator.

 

The reason they called me a fool was that my request did not honour the tradition at SFU of long and detailed negotiation to achieve desired results. It was crazy for me to think that I could just ask and receive, like Oliver Twist asking impertinently for more gruel at the workhouse.

 

I said I might be a fool, but my request would definitely show up the “special relationship” for whatever it turned out really to be. If SFUFA received interest arbitration, it would be strong evidence of the special relationship. If SFUFA did not, it would show something else.

 

The initial indications were promising. Senior officials suggested that there was a possibility. One official pointed out that if SFUFA really wanted interest arbitration, we would have to make a formal request. It was rather like the TV lotto advertisement that you can’t win the lotto if you don’t have a ticket. It raised our hopes and we sent in our request.

 

Initially we received a negative verbal response saying we would not receive interest arbitration but could try to renegotiate the Framework Agreement to get it. I followed this up with a face-to-face meeting, and asked them to reconsider. I was promised a written response, received almost immediately. Again, it said that if we at SFUFA wanted interest arbitration, we would have to renegotiate the Framework Agreement.

 

So we at SFUFA put in a request to renegotiate the Framework Agreement because, as it turns out from our member questionnaire, obtaining interest arbitration is the second most important issue for SFUFA members after getting competitive salaries. And the two – salaries and interest arbitration – appear to be linked.

 

So, then I was called to a meeting with senior administration officials. They explained to me that they did not have the person power to renegotiate the Framework Agreement. Apparently, according to them, SFU has significantly less administrative “feather bedding” (not their term) than most universities and they just didn’t have the personnel given all the other stuff we wanted them to address, like gender pay equity. I said that we weren’t really seeking to renegotiate the whole agreement. We just wanted a memorandum of understanding (MOU) on interest arbitration. It was they that had told us that this was the only way.

 

So, they said they’d think about it.

And then, a few weeks ago, they did offer us a Memorandum of Agreement to substitute interest arbitration for final offer arbitration.

 

And I was ecstatic. I thought it really proved they cared and wanted to be fair as possible. I really wondered if we really needed to pursue certification at all.

 

But it turns out that there are two models of interest arbitration – replicative and adjudicative.

UBCFA has adjudicative – a list of criteria on which the arbitrator should decide.

 

We were offered replicative – an attempt to imagine what might have been negotiated in other circumstances. What is more, the language proposed said that the arbitrator had to issue an award that the parties could have agreed to.So I guess we were a bit concerned, because SFU has told us on many occasions that they can never agree to anything beyond what PSEC dictates. Could this wording imply that we accepted the PSEC limit, and actually end up putting us in an even worse position?

 

We sent the proposal to our lawyer who said we were likely better off with final offer arbitration, which is what we’ve always used, than this offer they had made. It might be interest arbitration, but it was not the open, flexible process we were after.

 

So, it appeared that the interest arbitration we have been offered might actually reduce our ability to push for more than PSEC mandates, which was exactly our interest, and exactly what I had told them we were looking for – not a guarantee that we could get more, not a promise they would try to get us more, but a fair shot at letting an arbitrator give us something beyond the mandate if we made our case. But this appeared to imply that we accepted the limit of what PSEC allows them to offer us, which is even worse than our existing situation. Currently, its only fear and prudence that locks us in. This new offer might have added a new hurdle – chaining us to PSEC, unlike UBC and UVic.

 

Was this all a trick? No, not likely. SFU is itself locked into PSEC. And they did respond to our request with something that addressed the form of arbitration. It just didn’t actually address the underlying issue that our request was designed to deal with. Maybe that’s because we were not clear enough. Maybe there is still room.

Or maybe I really was a fool to think they could ever help us even if they did genuinely want to.So that’s the story so far.

 

We have made a counter-proposal to the administration to see if they will consider a change that gives us a bit more leeway – not tying them down, but also not tying us to an implicit acceptance of what PSEC might allow.

But I guess I’ve learned that you have take responsibility for what you want, and can’t expect the other guy to do the dirty work for you.

 

What I’ve come to realize is this: how well or how poorly I – or SFUFA as an organization or any of us – get along with the university administrators isn’t really the issue.

The issue is that, like it or not, this is a legal process of negotiation about legal rights and legal responsibilities. And no amount of good-will changes that fact.

 

The administrators have a job to do, and we have a job to do. Getting along with one another, working together where we can, all the things this special relationship is supposed to be about – those don’t change the fact that we do have a legal relationship, and all of us, on all sides, need to think about that legal relationship and our legal responsibilities. SFU can’t help us get around PSEC, even if they wanted to. They have legal responsibilities.

 

And if SFUFA was unionized, it would be in a stronger legal position to negotiate on behalf of its members.

 

Conclusion

 

The negotiation about interest arbitration isn’t over. We are still talking, and we are still hopeful we might achieve this by informal discussion. And if that doesn’t get us anywhere, we can still ask to renegotiate the whole Framework Agreement. We’re ready for that too.

 

But mostly what this negotiation has taught me is that the special relationship really only exists off the field of play. It is about fair play. We have rules and we mostly honour them. There are referees including Doug at Academic Relations, and the Deans, and Judith in Legal Affairs. Even I am a ref in my capacity as Tenure and Promotion Advisor. There are rules and there penalties when those rules are violated.

 

However, there is an administration team that, whether it wants to or not, can, at the end of the day, only represent the interests of the provincial government. Where our interests are different – like salaries and working conditions – the administration cannot actually represent the best interests of faculty, even when they want to. There is a legal framework that prevents that. And if that’s the case, then we should be fielding the strongest team we can to represent our own interests.

 

That means SFUFA should be a union. And to be a union, we need certification. That will be our goal in the new year.

 

All the best

Neil Abramson, President

SFUFA

The SFU Faculty Association is a member-driven professional association and collective bargaining agent for faculty, librarians and other academic staff at the three campuses of Simon Fraser University in Burnaby, Surrey and Vancouver B.C.

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