the comfort of why

Pick One, Settle, And Let’s Get Schools Open

I would rather be writing about a resolution to the current labour dispute in public education.

Instead I’m left to speculate on why, with the many alternatives available, there is no settlement between the two parties after approximately 18 months of bargaining.  I would simply like them to agree on one resolution mechanism and to move towards a deal rather than perpetuating this untenable situation.

Why?

Because while there are many improvements required to ensure the future health and vitality of the public education system in BC, this dispute is doing harm with every day that passes.  It is damaging working relationships, it is negating the brand of public education which may drive parents into the private system, it is denying gainful employment to teachers and others, it is affecting families, it is compromising the year for students, and it is potentially setting the stage to keep education in the courtrooms and not the classrooms for years to come.

Photo by: Reema Faris - West Vancouver School Board Trustee

As I’ve done in previous articles, I’d like to note that any errors of fact in the following discussion are my own as are the views expressed here: these are not the views of the West Vancouver Board of Education.  I’d also like to clearly acknowledge that this is not a legal opinion.

So what are the options available to the BC Public Schools Employers’ Association (BCPSEA) and the BC Teachers’ Federation (BCTF) to pursue a settlement? There may be many more, but I would like to focus on four which have been a feature of the on-going public dialogue, whether in the media, online, or in conversation. These are a negotiated settlement, mediation, binding arbitration, and the appointment of an industrial inquiry commissioner.

Negotiated Settlement

I’ve publicly stated that in my opinion a negotiated settlement would be the best outcome for the public education system in BC.

I remember hearing Dr. Charles Jago on CBC radio a few months ago. He was the mediator who helped arrange the last settlement between BCPSEA and the BCTF. In the interview, he said that the key to achieving a negotiated settlement is to find one area where the two parties seem to have a common interest and to build from that base of consensus. In the deal he mediated, that base of consensus was an incredibly narrow plank which had to do with one benefits issue.  It may have been narrow, but it was enough to get the process in motion.

One would like to think that the public education system itself represented a common base of interest, but the challenge is that the two negotiating parties in this dispute, BCPSEA and the BCTF, seem to interpret public education in very different ways.

Given the current status of the relationship between the two sides, let alone the history and the legacy of a litigious nature now seemingly endemic in the system, the likelihood of a negotiated settlement seems remote.  If so, what are the prospects of success with the remaining three options I’ve identified?

Mediation

Both parties have expressed interest in mediation as a means by which to resolve the dispute and it is a viable option.  I’d like to suggest that in the absence of a negotiated settlement, a mediated settlement would likely be the next best approach for the parties to resolve this crisis.

Although BCPSEA and BCTF have supported the notion of mediation, based on the evidence of the revolving door of possible mediators there is cause for concern regarding the viability of this option.

Facilitator Mark Brown, who had been an observer at the bargaining table from very early on, bowed out of the process when the BCTF issued a public call for Vince Ready to become involved.  Brown took this, rightly, as an expression of non-confidence and graciously stepped aside.  At first Vince Ready, after reviewing the position of each side, declined to take the task on as did Justice Stephen Kelleher.  Subsequently, and which perhaps we misinterpreted as a sign that the parties had moved in any substantive way, Vince Ready agreed to a weekend of exploratory talks to determine if the time had come for mediation.

It’s important to explain here that a mediator’s role is not to negotiate for either party in a dispute.  The mediator’s skill is his/her ability to pull, push, and prod both parties to help them overcome the gap between their positions.  In essence, the mediator is an advocate for the deal, not for one side nor for the other.

After the weekend of exploratory talks, Ready declared an impasse. That is, his evaluation of the willingness of the parties to “mind the gap” and to get to the other side led him to believe that mediation would not be successful.  In his remarks, he identified wages and benefits as a continuing obstacle to an agreement as well as the larger issue, and perhaps the most contentious, around the language of contract provisions relating to class size and composition.

Since the shutdown of those talks, Mr. Ready has stepped back, but he has not entirely stepped away which means that mediation remains an option.  However, mediation will not be the option for a resolution until such time as we see Mr. Ready call the two parties back together.  Until he does that, we can rest assured that the two sides remain too far apart.

If mediation continues to be an option, but not a likely one at the moment, what are the remaining options for potentially securing a settlement?

Binding Arbitration

On Friday, the BCTF called for binding arbitration to help break through the impasse in bargaining.

Binding Arbitration is another accepted mechanism to help sort out contentious collective agreements where the bargaining process appears to have reached a stalemate.  With binding arbitration, each side puts forward their “final” offer and the arbitrator — who is recognized as an independent third-party — fashions a collective agreement which they feel represents the best solution. It’s binding because both parties have to accept the arbitrator’s decision.  It is essentially ceding control of the bargaining process.

The challenge with the way that the BCTF has structured this new proposal is that it is asking for arbitration on only a few issues and not on all the issues.

To put wages, benefits, and prep time forward for binding arbitration leaves out class size and composition. This would be a viable approach if the language around class size and composition had been agreed to and these other issues were the only outstanding ones. However, there is no agreement or understanding on the language around class size and composition.

The BCTF’s argument appears to be that these specific issues can be arbitrated while the issue of class size and composition is left to the courts to decide.

IMG_5799

The problem is we don’t know when the courts will decide on class size and composition.  The appeal of the most recent Griffin decision is not till mid-October, but we don’t know when the ruling will be made.  There’s also the possibility that the case could go to the Supreme Court of Canada which would further extend the timeline for any certainty on this particular issue.

In the absence of this court certainty, the BCTF has proposed the establishment of an interim fund to address the issues of class size and composition. If the government were to agree to the terms of the interim fund, then perhaps the other items could go to arbitration.  But, this too is complicated because if the government agrees to the terms of the interim fund and if the courts are to decide on class size and composition, then there needs to be a mechanism by which the parties can reenter into collective bargaining once the court decision has been made.

Another complicating factor is the government’s reluctance to engage in binding arbitration because of its experience with arbitration during the 2002 dispute with BC’s doctors. You can find out more about this in Columnist Vaughn Palmer’s recent Vancouver Sun article.

While the opinion of some may be that the government can and should pay whatever it takes, there has to be some acknowledgement that the government is also required to take financial implications into consideration.  We may not want money to be a deciding factor when it comes to funding public education, but I don’t think it’s fair to deny the importance of public finances either nor the multi-faceted obligations of the government to all taxpayers.

The government knows that binding arbitration would likely result in a higher financial settlement than they may want to consider. The BCTF hasn’t included class size and composition in its proposal for arbitration, partly because of the court case, but also because it could risk getting less that it is seeking.

That’s not to say, despite the government’s disavowal of binding arbitration, that this isn’t still a viable option. However, it would depend on the parties being able to agree on an acceptable framework for arbitration — something that offered each side enough comfort to allow them to cede control over the outcome.

If not mediation and if not arbitration, are there any other options left for the two to consider?

Industrial Inquiry Commissioner

I don’t know enough about what’s involved with appointing an Industrial Inquiry Commissioner, but I know it’s an approach which the Vancouver School Board has promoted and I’ve also seen it promoted on social media.

As I understand it, an Industrial Inquiry Commissioner is an independent third-party much like an arbitrator. He/she would talk to both sides and investigate the impasse they’ve come to in collective bargaining.  The outcome of this investigation would be a report which would identify why the parties have failed to arrive at a settlement and the report would also contain non-binding recommendations.

I asked on Twitter last night why this would work if the recommendations were non-binding. The feedback I received was that given what the process entailed, it would create a situation where the parties would be compelled to resolve their differences based on the framework provided by the Commissioner.

It sounds like a very viable approach and the question then becomes why is this not the option that’s being pursued most actively by BCPSEA and the BCTF given the roadblocks which seem to hamper the other options we’ve discussed?

I’m not sure, but I would hazard a guess that both parties would be reluctant to face up to what the report may reveal with regard to bargaining strategies and proposals. There is also a risk involved, as with binding arbitration, of setting in motion a mechanism which entails ceding control of the outcomes and being spurred into pursuing a particular course of action.

These are the four options which I’ve seen put forward most often as ways in which this dispute could be settled and which would get teachers back to work and students back in school. If none of these options is pursued successfully, then we may see legislation to end the dispute and I believe that will be the worst possible outcome for the public education system.

Having discussed these four options and knowing that none of them appears to have led towards a solution, I’m left with one key question for each of the two parties.

My question to BCPSEA is this: after approximately 18 months of bargaining, just exactly how much money is the government prepared to put into the Learning Improvement Fund and how much money is it willing to put forward to address grievances arising from the Griffin decision in order to settle this dispute?

My question to the BCTF is this: apart from the government “giving in” by writing a cheque for the full value of the TF bargaining proposals as they currently stand, what is the way out of this current labour dispute?

My parting thought to both BCPSEA and the BCTF is this: there are many options — four that I’ve outlined in this article alone — which may help to resolve the labour dispute.

Please just pick one.

Make it work and get a deal done.

Open schools and let kids get back to learning.

4 Responses to Pick One, Settle, And Let’s Get Schools Open

  1. Hi Reema. I just want to make it clear that I support the teachers very much in their advocacy of more funds for classroom resources. In terms of class size I don’t know. I think school administrators have a finite amount of money to spend and is it better spent on ensuring small class sizes which is very expensive or on other areas such as curriculum development, increase in teacher salary, increase in teacher training etc. Ontario has smaller class sizes, but they had to cut out on other education initiatives and their test scores are not better than BC’s and many teachers and officials have publicly said, in hindsight, was it really worth it?

    With regards to Binding Arbitration, the BCTF is now adamant on it as a way to resolve the strike. It is true the arbitrator can rule for either side or come down the middle. Either way, the government has a lot to lose while the BCTF, really has nothing to lose on it. The salary they are getting paid today and their benefits, are not going to be diminished if they lose while for the government their fiscal plan could be put into jeopardy. Patti Bacchus and Mr. Lombardi are advocating for it but the binding arbitration done at local school districts, if won or lost, only affect the parties at the local level; the whole province’s treasury is not going to take a hit and that is a major difference.

    Also, if the BCTF was really serious about Binding Arbitration, it would amend it’s preconditions to make it more palatable to the government. Asking the government to drop E.81 isn’t going to fly because the government views it as something that has to be bargained. They even quote Justice Griffith as saying it is not etched in stone and has to be negotiated. A commentator mentioned that the BCTF is not giving specific class size limits and instead proposing a fund for class size and composition. The government is saying give us specifics and even though we agree that class composition should be looked at, the fund does not appeal to them because if they do eventually win the court case (2-3 years from now) they would have invested more money than they wanted to.

    You mentioned Mr Jago and the idea of finding one tenet where both parties agree on. They both seem to agree that Class Composition needs more money and resources. What if they entered into negotiations with Mr. Ready again and made that issue the first order of discussion. The BCTF would have to rethink it’s insistence that monies for class composition only has to go towards the hiring of more teachers. What about the EAs, counsellors, psychologists, speech and auditory pathologists, etc and the other people who deal almost exclusively with special needs students. Why can’t more monies go towards hiring them as well. Mr. Ready would also have to extract from the government, how much specifically they want to spend on classroom composition.

    I really don’t think that any of the solutions you have outlined are going to work. Too much animosity, distrust, and both sides have untenable demands that they would not want a Inquiry Commissioner to make public. I feel that the government at the end of this week or next, will go to the LRB and argue that after two weeks, kids are suffering and to end the strike. But isn’t this also murky. Because the LRB has said that not all grades are equal. Missing more than two weeks of school is not the same for a child in Grade 1 as it is for a student in Grade 11. So I wonder how they would end the strike based on that premise.

    • Thank you so much for reading this article as well and for your comment. I really appreciate the time you are taking to think through the issues and I can see that you’ve arrived at what seems like an inescapable conclusion: this is a very complicated issue and one that looks like it will be very tough to solve.

      There are a few points you’ve raised which I’d like to address and which I hope you’ll take into consideration.

      Class size is important and there is a lot of research available to support that assertion. It is an expensive proposition, but I think the measures we can take to reduce class size would contribute to better learning conditions for students. However, I’m not convinced that having firm class size limits within the collective agreement is the correct approach. The challenge is I’m not sure what would be the best alternative solution. We need a model which would allow flexibility at the local level while not setting up conditions whereby budgetary constraints force school districts to try and get as many students as possible into each classroom. With regard to the specifics of the BC situation, even if we wanted to change the approach to determining class sizes, we need to bargain new language which would be agreed to by both parties. The government in 2002 tried to take matters into their own hand and that was wrong. We have to address that first, I think, before we can come up with a new way which works for all the key groups in the system.

      Binding arbitration is a valid resolution mechanism, but it would have to be full arbitration. It cannot be on only a few items from the collective agreement and not on others unless the parties have reached an understanding on the balance of the contract provisions. While there may be an impact on the provincial budget, consider this: by their actions, the provincial government over the past 12 years has kept an estimated $300 million per year out of the public education system. There is a point where they just have to pay up — not to satisfy the BCTF, but to remedy their legal obligations and to do right by all the students of BC. And, contrary to what the government would have you believe, the world would not end with an arbitrated decision. The only thing which would be affected is their political standing and their political platform.

      With regard to the E80 and E81 proposals, I just want to clarify that the latter had to do with a way in which the collective agreement could be reopened after a court decision. That proposal has since been pulled by BCPSEA. Article E80 is the one which deals with BCPSEA’s proposals on class size and composition. Whichever way one looks at this and no matter whose side one chooses to support, the reality is that to go forward — in the absence of a final court ruling — we need some language around class size and composition. If that’s going to be a temporary fund, fine, but then you also need to allow for a way to reopen the collective agreement if the court decision comes down before it expires. I think there are many ways to bridge to a court decision just as I believe there may be many ways to construct language around class size and composition. It’s just that these parties do not have the type of relationship which might make that a real possibility.

      The BCTF has indicated it’s willingness to work with the Learning Improvement Fund (LIF) and that includes money for EAs and other specialists. It’s not limited to salaries for teachers. The fund which has been proposed and which does relate solely to teachers is the workload fund which the BCTF has proposed to deal with grievances arising out of the court rulings. Again, the distinction between these two funds is one of those facts which is obscured by the rhetoric and all the gamesmanship.

      I’m not sure if the essential services route would work because there are some very strict criteria in terms of what has to be considered for such a ruling to be handed down. Since what’s essential for kindergarten may not be the deemed to be the same as what’s considered essential for Grade 12, I can see this resulting in a partial opening of schools rather than a full reopening and I’m not sure parents would consider that an acceptable outcome.

      So, we are at a point where the chances for a reasonable approach to settling this dispute seem to be more and more remote with each passing day. That’s not the way it should be and if the crisis does not resolve, we may be looking at legislation which I maintain is the worst possible outcome for the BC public education in the long run, but which would get children back in school.

      I continue to hope for a mediated settlement, but to get there we need to keep pressure on both parties to get back to the bargaining table – preferably behind closed doors and with a full media blackout – immediately.

  2. Hi Reema. I was reading the Globe and Mail this morning, and under “Comments” (in a article on education by Justine Hunter) a reader stated that there is a thing called “Final Offer Arbitration” in which both parties have to put their best offers to the Arbitrator and this offer has to be “reasonable” The arbitrator than picks on or the other but does not go down the middle. These final offers forces the parties to pick a figure that is fair and not unreasonable. They have to drop all the rhetoric and put a number that they feel the arbitrator will accept. Why doesn’t the BCTF executive give the public more information about this kind of arbitration so that we know they are really trying to come up with a earnest way to end the strike. They have to market to the public specifically what they are trying to do in arbitration and give more details. Their specifics and overall communication of items like E80/81 and other important discussions has really been abysmal.

    • I apologize for the delay in getting back to you Azmina. The last few days got a bit hectic and I wasn’t able to keep up!

      I think the communications effort in this dispute, on all sides, has been poor and I think that all the key organizations — the government, the BCTF, BCSTA, BCPSEA, and BCCPAC — will have a lot to discuss once we have a settlement.

      This event was a crisis and it was not handled well at all. There are lots of lessons to be learned and I hope that all these groups will take the time to discuss and reflect on what’s happened.

      We all have to do a better job for the families in this province and most particularly for our students.

Leave a reply

3 × two =