Arbitration is supposed to be the final step in updating the policy based on the infamous ‘Path Forward’. What does arbitration mean for P76?
In a two-sided negotiation, arbitration is a process by which a neutral third party adjudicates between parties to render a decision. In a typical arbitration process, parties prepare arbitration briefs to lay out their case. Having legal consultation is typically an asset. In this respect, the University is at a distinct advantage given its deep pockets.
There are many different types of arbitration; however, the administration and FAUW agreed to interest arbitration: the arbitrator will hear submissions from both parties and issue a decision based on these submissions and the arbitrator’s interpretation of UW’s policies. The decision can borrow elements from the submissions, but doesn’t have to. Interest arbitration is new for negotiations at UW. While a process for arbitration is outlined in the Memorandum of Agreement (section 10), it is final offer selection rather than interest arbitration.
Arbitrator decisions tend to be conservative in the sense that they try to preserve the overarching decision-making processes within a workplace. Arbitrators try to be “fair,” but only within the well-established power relations of the workplace. An arbitrator interpreting prevailing governance processes at the University of Waterloo will likely accept that Deans/Chairs currently have well-established authority to set the initial salary and workload of lecturers, to assign their teaching schedules, and to make decisions about contract renewal or promotion to continuing status. These are a form of “management rights” that arbitrators are reluctant to overturn, even if they try to ensure these rights are being administered in a fair way. Similarly, the arbitrator will likely accept the well-established management right of the administration to veto any change to policy that is put forward by the faculty association to the Faculty Relations Committee.
It is difficult to know how the arbitrator will try to resolve Policy 76/77 at UW. Part of their job will be to assess which side’s proposal should be favoured according to the arbitrator’s interpretation of what UW’s current policy says and what current practices (i.e., management rights) are. For example, a key section of Policy 76 the arbitrator will be ruling on in terms of non-teaching terms is:
“For full-time Lecturers (including Clinical Lecturers in the School of Optometry), duties are primarily limited to teaching and service, and are normally assigned in all three terms, though Lecturers shall have the option to have at least one term in six be a non-teaching term.”
The administration will argue that this policy means that current policy supports a non-teaching term only by Lecturers redistributing their teaching load (i.e., teaching more courses in other semesters to get the non-teaching). They will argue that creating a non-teaching term for all lecturers would be a radical departure from past practices and their interpretation of Policy 76. The counter-argument will be that this policy should be interpreted as giving the right (“shall have the option”) to Lecturers to have a true non-teaching term without a redistributed workload, pointing to faculties (e.g., Environment) where current practice is to not redistribute workload as evidence to support this interpretation. How the arbitrator interprets this sentence of Policy 76 will greatly influence whose proposal on workload and the non-teaching term they give more credence to.
Going to mediation/arbitration (i.e., following the ‘Path Forward’) was sold to faculty members, and Lecturers in particular, as the only way to make improvements to our current working conditions. But does arbitration necessarily lead to improvements? No. For example, if the arbitrator rules in favour of the administrator’s interpretation of Policy 76, then a true non-teaching term could be lost or weakened in faculties/departments where this is currently practiced.
How does the announcement of FAUW’s certification drive affect arbitration?
Policy 76 negotiations are between two parties: FAUW and the employer. Changes in the status of either of the two parties are likely to result in a suspension of arbitration. The announcement of a certification drive of FAUW members is likely to be considered by the arbitrator to be such a change. The arbitrator may advise both parties to put negotiations on pause while a potential certification drive is on the table.
It’s important to note that Lecturers Connect is not a party in the arbitration; any actions undertaken by us are outside of any negotiations occurring between FAUW and the employer.
How might the arbitrator consider the December memo?
Arbitrators appointed by the Ontario Labour Relations Board to resolve collective bargaining disputes in a unionized workplace in which negotiations have broken down (i.e., following mediation and/or a labour strike) will try to “draw a line of convergence” to determine their ruling. This means that the arbitrator will look at the starting positions of both sides and analyze how these shifted over the course of negotiations.
Whereas the start of negotiations goes back a long time and there have already been compromises and concessions from the faculty association, the administration will argue that each new PDC “restarted” negotiations and so the starting point should be more recent. In its January memo we already saw the administration try to walk back the commitments it made in the December memo (insidiously, in the name of creating “equity”). Whether the arbitrator holds the administration to its December commitments as part of the line towards convergence, or in contrast considers its management rights (up to and including veto rights) to change its position, will be a critical decision in the arbitrator’s adjudication.
Since we are not unionized and we were not formally engaged in collective negotiations but rather “discussions at FRC” (where management has veto power), the arbitrator could rule that the administration was at liberty to reverse its position in the December memo according to UW’s collegial governing policy.
How do other universities do arbitration?
Let’s zoom out for a moment to conduct an environmental scan. How does arbitration at UW compare to arbitration at other Ontario universities?
You’ve probably heard that our two comparator universities are the University of Toronto and McMaster University. This is because they, like UW, are not unionized. As such, faculty working conditions are set out across several policies, with the relationship between the faculty association and the university administration codified in a memorandum of agreement.
UofT: Arbitration is available only on eligible matters such as salary, benefits, pensions, workload, leaves, and progress-through-the-ranks. The faculty association’s briefs are made public to the membership; here is an example. Matters falling out of scope are submitted to a facilitator and fact finder process. First the facilitator tries to bring the parties to agreement; unresolved issues go to an agreed-upon individual or panel, which issues a report and non-binding recommendations.
McMaster: Same as UW: final offer selection arbitration for salary and benefits negotiation.
Everywhere else: Arbitration is a step built into collective bargaining (note that in collective bargaining, the previous collective agreement acts as a baseline, and any changes to policies governing working conditions, benefits and salary etc. can be negotiated regularly on a timeline and are therefore subject to mediation and arbitration). At any time during the bargaining process, either side may ask the Minister of Labour, Training and Skills Development to appoint a conciliation officer. If no agreement is reached during conciliation, the parties have several options to continue negotiations, one of which is arbitration. The type of arbitration is typically outlined in the collective agreement.
Things we’re (still) wondering about arbitration:
Has the arbitrator been informed of FAUW’s change in status?
Is arbitration still happening?
Assuming arbitration moves forward, which items are going to arbitration?
Who will write the arbitration brief?
Has legal counsel been consulted? Will they be available during the arbitration process?
Is the intention to set a precedent to bake arbitration into the policy revision process? If so, what is the plan for achieving this?
Is the arbitrator’s decision final and binding?
What are the new timelines? How firm are they? We note with dismay that the original timeline given for arbitration was Feb-March 2023, which breezed right by.
What thoughts or questions do you have on arbitration?
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