E.80 – What It Is And What It Is Not

In the almost three years in which I’ve maintained this blog, I don’t think there’s another instance where I’ve posted two articles in two consecutive days.  In fact, I’m lucky if I get something up once a month.  Last night, I posted an article about class size and some of the difficulties involved in trying to negotiate the issue in the context of a collective agreement.  Today, I’d like to look at what’s called E.80 – that’s the proposal from the BC Public School Employers’ Association (BCPSEA) which was put forward to initiate bargaining on class size, class composition, and specialist educators.

Why?

Because to understand the current impasse we need to understand the background to the proposal and, more importantly, we need to understand what it is and what it is not.  Given the complexity of the issue, this may be a somewhat longer than usual post.

Before I get into the heart of what I’d like to say, please note that any errors of fact are my own as are the views expressed here: these are not the views of the West Vancouver Board of Education.

Library Book Sale

Let’s backtrack first to 2002. To quote from my article last night about class size,

To understand the class size issue in relation to the public education labour dispute, we have to consider the contract language before and after the benchmark year of 2002.  That is the year in which then Minister of Education, Christy Clark, led a government initiative which removed class size and composition from the collective agreement with BC’s teachers.  This unilateral change has since been deemed unconstitutional by the BC Supreme Court in two court cases which the government has lost. The second of the two court cases is currently under appeal and the BC Court of Appeal hearing is scheduled for mid-October 2014 with a decision to follow.

What did Justice Griffin say in her final ruling on these two court cases?

Let’s focus on one paragraph in particular, paragraph 679, which reads as follows:

[679]     The outcome of this case means that teachers have once again had their right to collectively bargain over their working conditions restored.  They have had certain language returned to their collective agreement retroactively.  This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining.

What does this mean?  It means that the language which the government removed from the teacher’s collective agreement has been restored to the old contract. But Justice Griffin also realized that 12 years had elapsed and notice what she says next: “This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining.”

Her ruling clarifies that although the language was restored to the 2002 contract is was not guaranteed to be part of any future contract. Again, the judge made it very clear that the contract language “can and likely will need to be the subject of ongoing collective bargaining.”

Justice Griffin’s direction to both parties, the provincial government and the BC Teachers’ Federation (BCTF), was to engage in collective bargaining to determine language for a new 2014 contract. Because the contract expired a year ago, a new contract would in fact be deemed to be in effect from June 2013.

So, what is bargaining?  Bargaining is where two parties put forward proposals.  Neither side has to like the proposals submitted and neither side has to accept the proposals outright. What both parties need to do is talk about the proposals.  There may be some which are rejected without any further discussion, there may be some which are accepted as is, and there may be some which are modified.  There are some which are modified and then modified again and then modified again and then modified again until such point as both parties are satisfied.

Bargaining is not about being offended by the proposals of the person with whom you are negotiating because it’s only to be expected that each side is negotiating from their point of interest and to try to satisfy the myriad of concerns with which they must contend.

As we can see, Justice Griffin put class size and composition back on the table to be bargained between BCPSEA and the BCTF.  To bargain on these issues, both parties had to put forward proposals for consideration.  So what did BCPSEA propose?

This brings me to E.80 or the section in the comprehensive package put forward by BCPSEA on June 15, 2014, which dealt with class size and composition.

Class Size

Essentially, BCPSEA is proposing that the new collective agreement would align with the School Act and its regulations which define class size limits as follows:

  • Kindergarten: 22 students (in 2002, this was 20)
  • Grades 1 to 3: 24 students (in 2002, this was 22)
  • Grades 4 to 12: 30 students, subject to defined exceptions, that is, which can be exceed if certain guidelines and protocols are followed (in 2002, this was a hard cap of 30)

If the government were to amend the School Act or the regulations, the matter could be raised for further collective bargaining and if that’s unsatisfactory, the BCTF could seek arbitration.

In response to this proposal, the BCTF seems to have moved away from trying to bargain fixed limits and has proposed to establish a fund.  This means that even the BCTF is not looking to carry over language from 2002, but has proposed an alternative mechanism to deal with the class size issue.

Class Composition

Without reprinting all the details, BCPSEA is essentially proposing that the Learning Improvement Fund (LIF) be incorporated into the collective agreement with some changes to the process by which the funds are allocated to “ensure that the union is involved in each of the provincial, district and school levels.” The LIF would be set at $75 million.

It appears that BCTF is comfortable with the format of the fund rather than the 2002 standard which addressed class composition through a formula based on the number of Individual Education Plans (IEPs) in a classroom.

So, the disagreement at the bargaining table is not about the fund, the disagreement is about the amount and in this BCTF is correct — $75 million is not sufficient either in terms of the need in schools or in terms of the spirit of the Griffin decision.

So, what should the amount be?  As I understand it, BCTF has proposed a fund of $225 million.  That means, in my opinion, there’s a number between $75 million and $225 million which would result in a deal.  It cannot simply be $75 million and if the BCTF will not lower the amount it expects, that’s fine.  However, to get the government to agree to expand the LIF by $150 million means that the BCTF will have to adjust its proposals on other provisions in the agreement.

Specialist Educators

The BCPSEA proposal is to create a fact-finding committee “to establish a base of information to better inform decisions in the allocation of the LIF.  The committee may make recommendations to the school districts with respect to general principles for allocation.”

Rather than commit to a specific number of specialists, BCPSEA is suggesting that data be collected and reviewed to determine the number of specialists required and then to incorporate those requirements into the allocations of the LIF.

BCTF’s proposal is structured to address needs now via the funds which would address class size and composition issues as a whole or by a return to the specific ratios of 2002.

Where’s the common ground between the parties on this issue?  To be honest, I’m not sure I see any, but it does seem like an increase in the LIF along with a process to determine needs would be feasible.

I hope, if you’re still reading at this point, that you recognize these bargaining proposals set out the position of each party and that the commitment to a negotiated settlement would be to continue talking on these points. In and of themselves, the proposals do not preclude an agreement, but they do show that to find a solution which both parties can sign-off on is going to take some work.

At the end of E.80, there’s a final point and it reads as follows: “(Note: These provisions supersede and replace all previous Articles that addressed class size, composition and staffing levels.)”

This is not a proposal, nor is this a clause nor is this the government’s attempt to nullify or prejudice any current or future court ruling.  This note simply means that if the parties are able to settle on these issues of class size and composition, then this new contract replaces the old contract, this becomes the contract of record, and the next time the parties are meeting to negotiate (which I hope would be at the end of five or six years depending on the term of the collective agreement) the language of this new contract would be the language upon which the discussions in 2018/219 would be based and which would have to include bargaining on class size and composition because nothing will have removed the status of these items as working conditions to be negotiated.

So why did Twitter explode last night with the view that E.80, which represents the government’s bargaining proposals, which is not a final offer, and which has been known about since mid-June, was an attempt to circumvent the Griffin decision or to compromise the status of the BCTF’s standing at the Court of Appeal?

Here’s the thing: I don’t know and I don’t understand although I can only conclude that there is some misunderstanding of the legal context.

In my view, if a negotiated settlement is agreed to, then we have to presume it represents the outcome of bargaining arrived at by the exercise of the free will of both sides.  If so, then such an agreement would have honoured the spirit of Justice Griffin’s ruling and theoretically the appeal could be dropped.  If the appeal were dropped, there would be no need to take the case any further because there would be no further legal recourse required with regard to this particular contract.  So, the problem can’t be a scenario in which there is a negotiated agreement.

If the problem is not a hypothetically negotiated agreement, then the problem must be with what happens if the parties can’t reach a negotiated agreement.

The presumption on the part of the BCTF seems to be that in the absence of a negotiated settlement, the government must abide by the terms of the 2002 agreement. That is, the government must automatically accept the ratios and caps regarding class size and composition.  But, that is not what Justice Griffin said nor what she implied because the government cannot be compelled to accept the language of the 2002 collective agreement if it does not represent terms to which it has agreed to in this round of collective bargaining. Remember her words? “This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining.”

With regard to the appeal, the proposals in E.80 do not compromise the outcome just by virtue of the fact they were proposed. An appeal looks at the errors of law which a judge may have made in their judgement; it does not retry a case and it may be upheld in part or in whole.  If the BCTF wins the appeal, it does not gain much further leverage because it simply upholds the Griffin decision with which we are already familiar.  The government may or may not appeal to the Supreme Court of Canada, but there’s no guarantee that the Court would give leave for the case to be heard.

Where does that leave us?  At this point in the talks, we’ve seen the involvement and withdrawal of three of this province’s best facilitators and mediators.  Vince Ready has declared an impasse, but he will keep tabs on both sides.  As I hope I’ve demonstrated above, there’s lots to talk about with regard to class size and composition and I actually believe agreement could be found on these provisions. What does that leave as a possible stumbling block?

Wages and benefits.

For the sake of the 559,000 students in the BC public education system, I sincerely hope that both parties will make every due effort to return to the mediation zone.  That’s the right thing to do for teachers, for families, and for our children who have a right to an education.

It’s All About The Facts, Not The Spin

I had written the bulk of this post before learning that the parties in the public education labour dispute had reached an impasse. My goal is always to try my best to understand issues and to raise awareness of them.  Events tonight have left me questioning much about what I know, but here’s one thing I haven’t changed my mind about: this is not the way we should be dealing with education in our province and we need a resolution to what is rapidly turning into a real mess.

“Truth is the first casualty of war” or so the saying goes and make no mistake about it, the labour dispute in BC’s public education sector is a war (as distasteful as the metaphor may be): a war of words and a war of ideologies. Let alone a war of Twitter streams, blog posts, promoted advertisements, press releases, and media interviews.

The rhetoric obscures many of the issues which are now buried under layers of history including legal proceedings, appearances in front of the Labour Relations Board, and legislation. These are very complex matters and they are particularly difficult to understand for those who may not live and breathe education and politics whether or not they have children in public schools.

At this stage in the dispute, with the start of school hanging in the balance and talks stuck in the we-may-someday-mediate phase, even those with only a cursory interest in the matter recognize that the largest stumbling blocks to a new negotiated settlement are the issues of class size, class composition, and the ratio of specialist educators. To craft contract language around each of these issues which is acceptable to both factions – balancing teacher workload, student learning conditions, and school district financials – is a daunting challenge. I’ve written about this difficulty before in two pieces: Ratios, Ranges, and Caps in Education and Class Size and Composition: A Birthday Party Analogy.

Lions Bay Artwork

In this post, I’d like to take a closer look at the issue of class size.

Why?

Because the dialogue around this issue seems to be the most divisive.

Class composition may be more difficult to deal with in terms of language for a collective agreement, but the consensus around accepting it as an issue which we must address appears to be broader.  In addition to that,Tracy Sherlock has done a great job of looking at the issue of special needs in the classroom and I would only offer a very pale imitation of her excellent contribution. The Vancouver Sun published the first instalment of Tracy’s two-part series in today’s paper (the August 30 issue) and the second instalment will appear on September 2.

This discussion is by no means an exhaustive study of the class size issue nor does it purport to be an extensively researched one. I’m also not making any arguments for or against particular class sizes; I just want to highlight some of the facts to show why this is so difficult to negotiate.

Before I get into my presentation, please note that any errors of fact are my own as are the views expressed here: these are not the views of the West Vancouver Board of Education.

To understand the class size issue in relation to the public education labour dispute, we have to consider the contract language before and after the benchmark year of 2002.  That is the year in which then Minister of Education, Christy Clark, led a government initiative which removed class size and composition from the collective agreement with BC’s teachers.  This unilateral change has since been deemed unconstitutional by the BC Supreme Court in two court cases which the government has lost. The second of the two court cases is currently under appeal and the BC Court of Appeal hearing is scheduled for mid-October 2014 with a decision to follow.

Prior to 2002, the limit on the number of students in a kindergarten (K) class was fixed at 20 and at 22 for Grades 1 through 3 (primary). The legislated changes in 2002 moved those limits up and they were set at 22 for K and 24 for primary.

Setting aside the issue of class composition, the net difference may not seem so great. However, there are valid reasons, backed by research evidence, that smaller classes at these younger ages are beneficial and will have the greatest influence on future student outcomes.

[NB. The current BCTF proposal at the bargaining table is to set up a fund to address class size issues rather than reverting to a fixed number within the collective agreement. A BCTF representative kindly clarified that for me on Twitter this evening. Any teachers reading this who may have questions regarding the BCTF proposal should contact their local association for more information.]

Prior to 2002 the limit for Grades 4 through 12 was 30 students per class with some variation between school districts.  As a result of the changes to the collective agreement in 2002, the cap was removed. There is technically no limit on how many students can be in any Grade 4 to 12 classroom although the objective is to aim for 30. A school and a school district must follow certain guidelines and protocols if a class does go over 30.

Some have argued that class size should be bargained locally, but that ignores two things: (1) class size provisions are considered provincial bargaining items, and (2) school districts are funded by the provincial government. This fiscal dependency means that even school districts in favour of bargaining class sizes locally cannot. Unlike a teenager who may have spent their allowance or a university student who may need more money for tuition, a school district cannot simply withdraw what it needs from the Mom and Dad ATM.

Even if a district has managed its budget exceptionally well and even if a district is not in a deficit position, it cannot on its own initiative reduce the limit for intermediate classes to 28 or 26 or 24. It may not have the funds required to hire staff and it may no longer have the physical space available for additional classrooms especially if schools in the area have been closed or if there’s been significant population growth.

With no easy answers for class sizes at intermediate, what about Grades 8 – 12?  Again, leaving aside both the issue of class composition and what the best size for a high school classroom may be, the issue at this level gets more complicated in terms of a teacher’s workload.

High school teachers don’t just have one class of 30 or one class of over 30. They have multiple classes and the number of students they deal with adds up very quickly.

I asked teachers on Twitter to provide me with some real life examples and I appreciate all the responses I received.  Here are a few for you to consider.  One teacher has four classes of 18, 26, 27, and 27. On an individual basis, those are manageable numbers, but consider the cumulative effect. That one teacher is responsible for 98 students. How about the teacher who has 163 students in academic courses and a PE class of 30? That’s 193 teenagers to deal with. Or the teacher with 203 students, 113 of whom are seen on one day and 90 others on the next day which includes one block for preparation time.  Or what about the teacher who has 7 classes with a total of 185 students?

Now let’s consider what the teachers’ jobs entail. These teachers are responsible for providing instruction, and they must also prepare for their classes, they test and assess the students, and they compile report cards.  In one case, that’s two interim reports per semester and two report cards per semester for each student.  And that’s all before we get into such issues as extra-curricular activities, meetings with parents, team meetings, staff meetings, professional development and so forth.

That is a substantial workload. And yes that’s the job and yes there are holidays and yes there are decent benefits which the teachers receive, but none of that detracts from the volume of the work and the challenging nature of the work or the validity of discussing classroom sizes as a learning condition for students.

As with the intermediate level, the issues here are primarily the financial impact of organizing and offering classes with fewer students in them and the restrictions of space, particularly in the Metro Vancouver area.

With all this in mind, perhaps it’s not surprising that the BCTF is looking for ways in which to reduce the workload for their members and to reduce the number of students in a classroom which will benefit all learners. The question isn’t whether or not we should aim for smaller class sizes in the K to 12 sector, but how to do so and by which mechanism.

As usual, it’s a lot easier to discuss an issue and to highlight the difficulties than it is to provide a solution.  However, it’s virtually impossible to solve any issue without dialogue and it saddens me that the conversation around education at the provincial level, on topics such as class size, has become mired in recrimination and rancour.

In looking at the class size issue more closely, albeit in isolation, I have to say I don’t envy Vince Ready.  If he does manage to engineer a negotiated settlement within the next week or two, given the difficulties I’ve touched on above and the others I haven’t yet delved into, then he will truly be one of the most amazing people I hope to some day meet.

Other People’s Moneyitis

Other People’s Moneyitis (OPM) is the syndrome commonly noted where those in charge of the public purse, such as governments who claim to be fiscally prudent, often seem to make decisions which do not appear to be supported by rational business arguments.

We see the symptoms of this syndrome, for example, when governments express concerns about spending, but then increase salaries for political staffers and themselves or run multi-million self-promoting advertising campaigns.

OPM is one of the few explanations which seems to make sense in trying to come to terms with the provincial government’s position on bargaining in the current labour dispute with the BCTF.  A dispute which is threatening to dramatically derail education for approximately 559,000 students this fall.

Why?

As those following the intricacies of public education in British Columbia will know, the BC Supreme Court found that the government acted unconstitutionally in 2002 when it stripped provisions from the teachers’ collective agreement around class size and composition.

Victoria Parliament

This original court case was not appealed which means the government accepted its wrong-doing and accepted class size and composition as working conditions to be negotiated with the union.

The government was given a year to fashion a remedy, but failed to do so successfully and Justice Griffin subsequently ruled that they had negotiated in bad faith, that the remedy was insufficient, and that they had to pay the BCTF $2 million in fines. This is the judgement which the government is now appealing and which will be heard in mid-October 2014.

What does it mean if the government wins the appeal and what does it mean if the government does not win the appeal?

If the government wins the appeal, it means that they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated.  These facts from the original court case do not change.

With a government win, the BCTF may appeal to the Supreme Court of Canada and I understand there would be a significant possibility that the highest court would agree to hear the case in this situation.

If the case does go to the Supreme Court of Canada and if it is found to be in favour of the BCTF, that could have a huge cost implication not only for this one collective agreement but for any collective agreement with any public sector union and for all time.  While the courts would never say how much money government is required to spend, a loss by the government — if they let it get this far — would have tremendous cost implications well beyond anything required to settle the current dispute.

On the other hand, if the government were to win at the Supreme Court of Canada, it would still mean they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated because the Supreme Court would not be examining the original court case. All those legal costs and all the hidden costs of time and resources will have been spent to end up back at the position in which the government started. To refuse to see that even a win at the Supreme Court of Canada may still lead to the government of British Columbia investing a significant amount of money in the public education system is a level of obstinacy and arrogance that can only be afforded with OPM.

Let’s go back to the appeal of the Griffin decision this October.

If the government loses, they can make application to the Supreme Court of Canada, but it’s my understanding that there may be less interest from the higher court in hearing this case under these circumstances.  That means, if the court of appeal expedites its ruling and if the Supreme Court were to turn down the request to hear the case, the end of the legal process would in fact be a lot sooner than anticipated.

With an appeal loss, the government’s risky gamble will have been for nought.  The original finding that they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated would stand. They would have to pay $2 million to the BCTF.  The finding of bad faith bargaining would stand as would the finding that the remedy, which the government fashioned over the course of the year they had, was insufficient.

In addition to funding whatever number or formula or fund is established to deal with class size and composition, an appeal loss would also mean that every instance where a classroom did not comply with the provisions of class size and class composition as per the 2002 collective agreement would form the basis for a grievance.

Think about that for a moment.

Every class throughout the province from 2002 to 2014 which did not comply with the provisions of the collective agreement which existed prior to 2002 would be subject to a grievance with no further legal processes available for the government to pursue.

Every non-compliant classroom.  For each of twelve years.  Throughout the province.

Think about the cost implications not only in terms of the actual compensation that would be paid out in the end, but of the legal fees involved and the demand on resources.  Instead of promoting and providing education, the Ministry of Education, school districts, the union, the local branches, and teachers, would be tied up in an endless series of grievances.

Any private entity, faced with the potential for such a future calamity, would be zealous in trying to extricate itself. In my estimation, it’s only the false confidence of OPM which prevents the government from doing so now.

That’s why I believe a negotiated settlement prior to the appeal being heard is actually one which serves the government interests the best and which would actually be much more mindful of taxpayers’ money. It would be the smartest business move and evidence of fiscal prudence as well as visionary leadership.

The government is standing on quicksand when it comes to the labour dispute with BC’s teachers although they are acting as if they’re secure in their bunker.

However, if they don’t pursue an out-of-court settlement now (a negotiated settlement which would enable school to start on September 2 as scheduled), if they don’t consider the abyss into which they are staring, when they fall, they will drag students, families, and one of the world’s best public education systems down with them.

I Don’t Like Lockouts And Strikes

Based on “Spiders and Snakes” by Jim Stafford. I remember when students said “We wanna go to school today” And we said, “Yes, you do.” They said, “That’s where we learn and grow. And we’re not the kind that likes to stay at home. It’s our future.” We said, “That’s true.”   And so theyContinue Reading