During a one-day excursion to Victoria this summer with family members and friends, I had the opportunity to visit Craigdarroch Castle. It’s a landmark with a very interesting history including a period of time in which it served as the offices for the Victoria Board of Education. However, from 1921 to 1946, the castle was home to Victoria College and so it bears witness to the legacy of teaching and learning from an earlier era. In one of the rooms, I spotted this note on an information display:

Bill Thackery (class of 1947) … “he was an amazingly effective teacher. I guess we were doing European history, and because people were at war or people had been at war, … he’d give one side of the problem and then the next lecture he’d give the opposite side of the problem … he was very good at it … I never ran into anybody else that did that quite the same.”

In that spirit, I’m going to do my best today to explain why the BC Teachers’ Federation (BCTF) is objecting to the proposals put forward by the BC Public School Employers’ Association (BCPSEA) in the current round of collective bargaining regarding class size and composition.  These proposals were contained in a comprehensive package which BCPSEA, the government’s bargaining agent, presented to the BCTF on June 15, 2014. The bargaining proposals are contained in Article E.80 which I discussed at length in the article I wrote and posted on Sunday.

Given the feedback I’ve received and given the opportunity to reflect on the information I’ve gleaned since, I want to try to present the other side of the debate to demonstrate the concerns embodied in the BCTF’s position at the bargaining table.

Why?

Because in such a contentious dispute as this one, I think it’s important to reflect on the position of both parties and to understand why a resolution has been so difficult to reach.  Professor Wayne Ross from UBC did an excellent job in summarizing the difficulties inherent in this dispute during his appearance on today’s episode of BC Almanac which aired on CBC Radio One today at noon. You’ll find a link to the audio here.

As I did on Sunday, I’d like to 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.  I’d also like to clearly acknowledge that this is not a legal opinion.

To frame the discussion, we have to remember that when speaking about 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.

Let’s look again at the issues of class size, class composition, and the ratio of specialists, the stumbling blocks in the current negotiations.

Class Size

In the 2002 collective agreement, class size limits were as follows:

• Kindergarten: 20 students
• Grades 1 to 3: 22 students
• Grades 4 to 12: 30 students

After these provisions were stripped in 2002 and with the impact of other initiatives, the current class limits, as contained in the School Act and accompanying regulations, are:

• Kindergarten: 22 students
• Grades 1 to 3: 24 students
• Grades 4 to 12: 30 students, subject to defined exceptions. That is, the limit of 30 can be exceeded if certain guidelines and protocols are followed or for those subject areas in which larger classes may be preferable.

In E.80, BCPSEA has proposed to use the current class size limits as a guideline to school organization but to house them within the School Act and not in the collective agreement. Any changes to these limits would then be subject to further collective bargaining and failing a resolution to that, arbitration.

This is problematic for two main reasons.

First, it’s evident that the current limits are higher than those which existed in 2002.  While the impact on kindergarten and the primary grades may be within a range of acceptability, the impact on classes from Grades 4 to 12 has been significant and led to larger classes albeit not on a consistent basis throughout the province given varying local contexts.

Why the trend to larger classes? Because of the constraints on funding, school districts will always work towards the maximum limit in order to be more efficient with the funds they have available.  This “efficiency”, although it may be construed as sound fiscal management, may not coincide with the most desirable learning conditions for students. I’ve written about class size in a number of articles, most recently in It’s All About The Facts, Not The Spin.

The second key reason for objecting to BCPSEA’s E.80 proposal is that by putting the class size limits in the School Act, the government could opt, at its own volition and at any time, to legislate changes. This means that any remedy for such unilateral action would always be after the fact with no guarantees that a resolution would be found except through an extended and expensive process.

Before I try to explain why this has served as a logjam to current negotiations, I’d like to look at the other two components in E.80 which have to do with class composition and the ratio for specialists in schools and school districts.

Class Composition

Without going through the details of the 2002 contract language around class composition, I’d like to highlight the key principle it embodied.  That is, class sizes were adjusted and classroom organization was altered to take into account the challenges which may be presented based on the specific needs of students.  To capture this complexity, the collective agreement specified a limit of three students per class with Individual Education Plans (IEPs).

This guideline, over time, was eliminated with a number of consequences. Chief among these is simply that the number of children with special needs, a designation which in fact covers a wide spectrum of issues, has increased in classrooms.  Matched with a decrease in funding which has led to reductions in programs, services, and resources, this no-limit approach, while perhaps more equitable in some respects, has had a noticeable impact on teacher workload and has also had an impact on students who may not be receiving the care and attention they need.  For more on this, please read Tracy Sherlock’s two part series on class composition which appeared in the August 30 and September 2 issues of the Vancouver Sun.

As a consequence of their first loss in the BC Supreme Court, the one in which class size and composition were confirmed as working conditions to be bargained, the government introduced the Learning Improvement Fund (LIF).  This additional funding is distributed within a school district based on a consultative process which is meant to identify the needs at each school.

Here’s the problem: the LIF, as currently structured, is like asking your three children what they need in order to learn better and then having to choose which of your three children you are going to help. Or, you try to do a little bit for each child and fail to do enough for any one of them. It becomes a competition for meagre resources.

As you can see, by structuring the remedy as a centralized fund, the ability to structure each classroom in a way which balances the teacher’s workload and the student’s needs has been greatly diminished.

However, it is my understanding that the BCTF, in its proposals, has indicated a willingness to work with the concept of the LIF, to make adjustments to the consultative process it entails, and to increase the amount of funds available for disbursements.

E.80 would appear to indicate that the parties are in agreement on the mechanism, but it’s important to understand that the value of the fund continues to be a point of disagreement and that the value of the fund may never match what was provided for in the language of the 2002 contract.

Specialists

The term specialists, in the context of public education bargaining, refers to teacher librarians, teacher counsellors, english as a second language teachers, psychologists, language pathologists, learning assistance teachers, and special education resource teachers.

In the 2002 collective agreement, the number of specialists was determined by the application of a ratio which dictated how many teacher-specialists there would be per a specified number of students. I believe these ratios are no longer in effect which essentially means each school district staffs its contingent of specialists depending on what it can manage for student support services within its budget.  That is why so many of these positions have been lost over the past twelve years and it’s only logical to conclude that the fewer specialists you have, the fewer services you can offer.

As I wrote on Sunday, “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.

The problem with BCPSEA’s proposal is that the issue of the number of specialists in a school district is essentially deferred to a solution sometime in the future with no guarantee that the results from the fact-finding exercise will actually be implemented.  In other words, today’s clearly demonstrated needs would remain unfulfilled and could remain so indefinitely.

So, what does this all mean?

I hope I’ve shown how BCPSEA’s proposals, as set out in E.80, are very far removed from the caps, limits, and ratios specified in the 2002 collective agreement. Given the manner in which the government removed class size and composition language from the 2002 agreement, it can’t be a surprise that they are reluctant to return to it.

But let’s look again at what Justice Susan Griffin said particularly in this paragraph from the second court case, the one which is currently under appeal:

[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.

BCPSEA argues that in E.80 it is putting forward proposals to negotiate new language around class size and composition for a collective agreement in 2014 (which would be in effect as of 2013 because the contract expired a year ago).  This seems to me in keeping with the spirit of the Griffin decision which is that these items are subject to collective bargaining.

As part of the collective bargaining process, BCTF is under no obligation to accept E.80 as written, but there is room, if it so wishes, to discuss and modify the proposals.  For example, would it be possible to accept the class limits of 22-24-flexible 30 but have those put into the collective agreement for the five or six year term instead of leaving it in the School Act? Instead, the BCTF has chosen, with cries that E.80 must go, to reject them outright and one can understand why.

This is the quandary for BCTF: it’s evident that the BCPSEA proposals do not match the value or effect of the 2002 language which has been retroactively restored to the collective agreement.  This is what the BCTF means when it says it should not have to settle for anything less than what it has won in the courts.

My difficulty with this is that Justice Griffin said the working conditions were retroactively restored to the collective agreement; she didn’t say that the 2002 collective agreement was preserved in perpetuity.  And if the BCTF position is that the language from 2002 is not only the starting point for negotiations, but the end point, then one has to question whether that is bargaining in the spirit which Justice Griffin envisioned.

If the BCTF and BCPSEA were able to negotiate a settlement, it would likely involve changes to the language of the collective agreement. However, by virtue of being a negotiated settlement the implication is that both sides have consented to the new terms and conditions.  That is, each party may have gained something, lost something; they may despise certain aspects and be thrilled with others, but overall it’s something which each party has voluntarily decided they can live with for a limited term.

So even if the negotiated settlement were not as strong as 2002, by virtue of signing it, BCTF would have indicated that overall the deal was satisfactory and would forego any improvements which may result from winning the appeal or at the Supreme Court of Canada if the case does go that far.

I can understand the BCTF reluctance to proceed with a negotiated settlement, but I don’t think that’s the reason we are sitting without a resolution after eighteen months of bargaining.

And this is where I think the real impasse lies.

The real impasse lies in what happens if, even after their efforts to bargain as per Justice Griffin’s ruling, BCPSEA and BCTF have failed to negotiate a settlement.

BCTF’s interpretation is that the provisions of the 2002 contract, in the absence of a settlement, would carry forward with its language intact.  That is, the clauses on class size and composition will have been deemed to be tabled and the government will then have to return to class sizes of 20-22-30, a class composition of three IEPs per classroom, and specific ratios for specialist teachers.

The government doesn’t agree and that’s why this remains a legal debate.

As stated earlier, the court of appeal hearing has been scheduled for mid-October 2014 with a decision to follow at some point in the future. Chances are very good that whichever party loses at appeal will apply to the Supreme Court of Canada although there is no guarantee that the application to hear will be accepted.  That all takes time and a long time.

In the absence of an immediate court decision, how do we get teachers back to work and students back in schools?

The government, in the face of intense public pressure, may choose to legislate in which case we may end up with something that looks very much like E.80 for the next five to six years and which will ensure that education stays in the courts rather than in our classrooms.

The BCTF will argue that the government can make all this go away by essentially agreeing to a 2013/14 edition of the 2002 contract along with increases to wages and improvements to benefits which adds to the overall cost of the agreement.

The result of these irreconcilable differences is that we have reached September 2, schools did not open, and there’s no end in sight. You can choose to blame one side or the other, you may choose to support one side or the other, but until both sides find a way to move into the mediation zone — with a sustained bargaining effort aimed at securing a negotiated settlement — we are at an impasse.

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.

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.