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INTEREST ARBITRATION BRIEF SUBMITTED ON BEHALF OF THE
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3902
JUNE 1, 2015
INTRODUCTION
1. This is an interest arbitration. The Union, Canadian Union of Public
Employees Local 3902, commenced a legal strike on February 27, 2015.
After nearly a month, on March 26, 2015, the Parties agreed to refer the
outstanding issues to binding interest arbitration.
2. The Parties were able to reach agreement on all items between them with
the exception of two items – a new Tuition Assistance Fund, and a new
Graduate Student Bursary.
3. The Parties are essentially in agreement as to the purpose and
administration of the Tuition Assistance Fund. Further they are agreed as
to the eligibility criteria to qualify. Finally, the Parties are essentially in
agreement with the estimated costs of the Fund over the life of the
Collective Agreement.
4. The Parties are essentially in agreement as to the purpose of the
Graduate Student Bursary Fund, although they disagree as to whether the
Employer or the Union should administer the Fund. They are agreed as to
the eligibility criteria to qualify. Finally, the Parties are essentially in
agreement with the estimated costs of the Bursary over the life of the
Collective Agreement.
5. The issue in dispute is whether the Employer or the individual members of
the Bargaining Unit will bear the risk in the event the monies provided by
the Employer for the Fund and the Bursary are insufficient. The Union
submits the Employer should bear the risk as it controls all of the variables
which determine eligibility for the Fund and the Bursary.
6. The Union proposes two new articles in the Collective Agreement
regarding a new Tuition Assistance Fund and a new Graduate Student
Bursary Fund. The provisions provide for per member entitlements once
certain eligibility criteria are met. The Union proposal requires the
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Employer to administer both funds as it has all the information to
determine entitlement to either fund. The final position of the Union was
sent to the Conciliator to provide to the Employer by email on Wednesday
March 25, 2015 prior to the decision of the membership to refer the
outstanding issues to interest arbitration.
7. The Employer proposes different language for the new Tuition Assistance
Fund and Graduate Student Bursary, and proposes that they be in Letters
of Intent rather than in the Collective Agreement as articles of the
Agreement. The Employer proposes the amounts for the Fund and the
Bursary be capped at an annual amount for each year of the Collective
Agreement. Further, the Employer proposed the Union have responsibility
to administer and distribute the Graduate Student Bursary Fund with no
financial support for the administrative costs the Union will undoubtedly
incur.
8. The differences between the Tuition Assistance Fund as proposed by the
Union and the Employer are as follows:
March 25, 2015 – Union Proposal
Article XX - Tuition Assistance
Fund – Union Proposal
Beginning on September 1, 2015, the
University will administer a Tuition
Assistance Fund for the period
September 1, 2014 to August 31,
2015 for the support of employees in
the Bargaining Unit who were
registered during that period in
doctoral-stream PhD programmes
years 5 and 6, or doctoral-stream
Master’s programs in year 2 and had
been part of the “funded cohort” at
any point in their degree and are now
outside of the “funded cohort.”
Each such employee will receive a
monetary payment equivalent to the
difference between 50% of the
September 2014 domestic fee rate
and the international or domestic
tuition paid by each such member
March 18, 2015 MOS – Employer
Proposal
Letter of Intent: Tuition
Assistance Fund – Employer
Proposal
Beginning September 1, 2015 the
University will administer a Tuition
Assistance Fund in the amount of up to
$600,000 for the period September 1,
2014 to August 31, 2015 for the
support of employees in this bargaining
unit who are registered in doctoral
stream PhD programs years 5 and 6
and doctoral stream Masters programs
in year 2 to assist in defraying fees.
Beginning September 1, 2016 the
University will administer a Tuition
Assistance Fund in the amount of up to
$600,000 for the period September 1,
2015 to August 31, 2016 for the
support of employees in this bargaining
unit who are registered in doctoral
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during that period, after the
application to tuition fees of all
internal and external awards
(including DCA and OGS and
excluding T4 employment income
from any source.)
This process will be repeated on an
annual basis, and payments will be
based on the annual domestic fee
rate.
stream PhD programs years 5 and 6
and doctoral stream Masters programs
in year 2 to assist in defraying fees.
In September of each year, beginning
in September 2015, the Labour
Management Committee will meet to
review relevant data and a summary
from the University concerning the
administration of the monies
distributed for the previous year.
In September of each year beginning in
September 2015, the Labour
Management Committee will meet for
one half day with Peter Simpson
attending as facilitator to review
relevant data and a summary from the
University concerning the
administration of the monies in this
Fund for the previous year.
Relevant data will include the eligible
members of the bargaining unit, and
the international or domestic tuition
paid by each during the previous 12
month period after the application of
all internal and external awards, so as
to confirm the distribution of the Fund
in accordance with its objectives
(including the provision of
proportional support for domestic and
international members).
Beginning September 1, 2017 the
University will administer a Tuition
Assistance Fund in the amount of up to
$600,000 for the period September 1,
2016 to August 31, 2017 for the
support of employees in this bargaining
unit who are registered in doctoral
stream PhD programs 5 and 6and
doctoral stream Masters programs in
year 2 to assist in defraying fees.
Relevant data will include the names of
eligible members of the bargaining
unit, and the international or domestic
tuition paid by each after application of
all internal and external awards, so as
to confirm the distribution of the Fund
in accordance with the objectives of
the Union (including to provide
proportional support for domestic and
international members).
In support of this meeting, the
University agrees to provide the Union
with the information used in the
preparation of its spreadsheet
regarding the Union’s March 15, 2015
proposal and in support of the Union’s
objectives with respect to the Fund.
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Notwithstanding the provisions of
Article 27.07 (Letters of Intent), any
alleged violation of this Letter may be
pursued under Articles 14 (Grievance
Procedure) and 15 (Arbitration) of the
Collective Agreement.
Tab 1, Union document book, Comparison Chart – Union and Employer proposals
9. The differences between the Graduate Student Bursary Fund as proposed
by the Union and the Employer are as follows:
March 25, 2015 – Union Proposal
Article XX -- Graduate Student
Bursary Fund – Union Proposal
Beginning on September 1, 2015, the
University will administer a Graduate
Student Bursary Fund for the period
September 1, 2014 to August 31, 2015
to provide a supplement to members
of the Bargaining Unit who are in the
“funded cohort” and who, after tuition
and ancillary fees are deducted,
receive less than $17,500 through a
combination of their “funding
commitment” as provided in “Letter of
Intent: Calculation,” bargaining unit
employment hours to the maximum
allowed therein, and major awards by
external granting agencies.
March 18, 2015 MOS – Employer
Proposal
Letter of Intent: Graduate
Student Bursary Fund –
Employer Proposal
Beginning September 1, 2015 the
University will pay to the Union
$1,045,000 for the period September
1, 2014 to August 31, 2015 for the
creation of a Graduate Student
Bursary Fund for employees in this
bargaining unit.
This process will be repeated on an
annual basis.
Beginning September 1, 2016 the
University will pay to the Union
$1,045,000 for the period September
1, 2015 to August 31, 2016 for the
creation of a Graduate Student
Bursary Fund for employees in this
bargaining unit.
In September of each year, beginning
in September 2015, the Labour
Beginning September 1, 2017 the
University will pay to the Union
$1,045,000 for the period September
1, 2016 to August 31, 2017 for the
creation of a Graduate Student
Bursary Fund for employees in this
bargaining unit.
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Management Committee will meet to
review relevant data and a summary
from the University concerning the
administration of the monies
distributed for the previous year.
In September of each year beginning
in September 2015, the Labour
Management Committee will meet for
one half day with Peter Simpson
attending as facilitator to review
relevant data and a summary from
the Union concerning the
Relevant data will include the names of administration of the monies in this
the eligible members of the bargaining Fund for the previous year.
unit and the level of the “funding
commitment” as described in the
Relevant data will include the names
“Letter of Intent: Calculation” provided of the eligible members of the
to each such eligible member during
bargaining unit as described in the
the period.
Union’s March 15, 2015 proposal and
will include the level of the “funding
commitment” as described in the
“Letter of Intent”: Calculation” for
each such eligible member, so as to
allow the Union to distribute the
funds in accordance with its
objectives.
In support of this meeting, the
University agrees to provide the
Union with the information the Union
used in the preparation of its
spreadsheet regarding the Union’s
March 15, 2015 proposal and in
support of the Union’s objectives with
respect to the Fund.
Notwithstanding the provisions of
Article 27.07 (Letters of Intent), any
alleged violation of this Letter may be
pursued under Articles 14 (Grievance
Procedure) and 15 (Arbitration) of the
Collective Agreement.
Tab 1, Union document book – Comparison Chart, Union and Employer proposals
10. The Employer’s proposals are contained in a March 18, 2015
Memorandum of Settlement which was signed by four of six voting
members of the Union’s bargaining committee and opposed by two
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members of the Committee, and which was rejected by the Union’s
membership in a vote which took place over March 20, 21 and 22,
resulting in the continuation of the strike.
11. The first difference is whether the funds should be in the nature of
individual stipulated entitlements to the eligible members of the
bargaining unit (Union) or whether the funds should be in the nature of
“capped” funds, administered by the Union, which provide for annual
amounts for each of the funds, but stops short of a stipulated entitlement
for each eligible member (Employer).
12. The second difference is whether the new commitments are in articles of
the collective agreement (Union), or in letters of intent which are
grievable and arbitrable (Employer).
13. The third difference is whether the Union or the Employer will administer
the Graduate Student Bursary Fund. If the fund is a per-member “top-up”
as proposed by the Union, it should be administered by the Employer,
which has both the data and the administrative support to do so.
14. The Parties agree the purpose of the Tuition Assistance Fund is to provide
tuition assistance for Doctoral Students and Masters Students in the
doctoral stream who are beyond the “funded cohort” in order to reduce
their effective tuition to the level of 50% of domestic tuition plus fees. The
Parties agree the Employer should administer this Fund.
15. The Parties agree the purpose of the Graduate Student Bursary Fund is to
provide a “top-up” to Graduate Students in the “funded cohort” whose
guaranteed funding package is less than $17,500.00 so that each will be
guaranteed at least that amount annually. The Employer wants the Union
to administer this Fund based on data it uniquely collects and controls.
16. During the strike, after a number of requests through the Minister of
Labour, the Employer provided data to the Union which suggests the
annual amounts proposed by the Employer for both Funds will be
sufficient to meet the goals of each of the Funds. The Union relied on the
data provided by the Employer in the development of its proposals on
March 15 2015 and thereafter. The question is who bears the risk if the
assumptions underlying the Union costing do not hold – the Employer,
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which has greater control over the variables that can impact the
assumptions, or the members of the bargaining unit eligible for payments
under the funds?
17. The issues, at heart, are about the ability to afford to continue a Graduate
education. As argued below, the Union submits that the appropriate
outcome is to include the funds as “per-member” entitlements in the
collective agreement for eligible employees and award the Union’s
proposals. This is particularly so after a month-long strike which saw the
members of the bargaining unit strike, and vote to continue a strike over
these issues – even to the extent of re-allocating and foregoing wage
increases to redistribute funds in the pursuit of equity.
FACTS
18. The Union was originally certified in 1973 as the “Graduate Assistants
Association”, to represent certain employees of Victoria College of the
University of Toronto who were also registered as graduate students or
post doctoral fellows. Following the transfer of the Arts Departments of
Victoria College directly to the University of Toronto in 1973, the Graduate
Assistants Association, Local 2, was certified in 1975 as bargaining agent
for a similar bargaining unit at the University of Toronto.
19. The Graduate Assistants Association was later renamed the Canadian
Union of Educational Workers, and the relationship at the University of
Toronto continued between the Employer and the Canadian Union of
Educational Workers, Local 2 until 1995, when pursuant to a merger of
the CUEW and CUPE, CUPE Local 3902 became the successor Union
representing employees of the Employer in the bargaining unit.
20. The Bargaining Unit is described in Article 2:01 of the expired Collective
Agreement in effect from February 24, 2012 to April 30, 2014 as follows:
2:01 The Employer recognizes the Canadian Union of Public
Employees, Local 3902, Unit 1 as the sole and exclusive collective
bargaining agent for all persons employed as teaching assistants,
teaching fellows, demonstrators, tutors, markers, instructors,
teaching laboratory assistants, Chief Presiding Officers (as defined
in Paragraph One of the Memorandum of Understanding dated
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February 8, 1988), invigilators, and part-time lecturers who are
Post Doctoral Fellows, Undergraduate Students in the University of
Toronto, and Graduate Students in the School of Graduate Studies
of the University of Toronto.
Tab 2 Union’s Book of Documents - Expired Collective Agreement in effect from
February 24, 2012 to April 30, 2014
21. Article 2:02 of the expired Collective Agreement sets out a number of
exclusions from the Bargaining Unit, which are not applicable to the issues
raised in this consensual interest arbitration.
22. The Employer is The Governing Council of the University of Toronto. The
University of Toronto is one of the leading post-secondary institutions in
the world. It consistently outranks other Canadian universities, and
consistently ranks among the top 20 universities globally. It is the largest
University in Canada and has the largest Graduate school in the country.
In terms of remuneration for its academic staff it consistently leads other
Universities and is, in the words of interest arbitrators, “at the top of the
market” in this regard.
Tab 26, Union’s Book of Documents– press statements, University of Toronto News,
University of Toronto Magazine
Tab 27, Union’s Book of Documents – University enrollments – Universities Canada,
University Enrolments, www.univcan.ca/canadian-universites/facts-andstats/enrolment-by-university
23. Members of the Bargaining Unit must be Post Doctoral Fellows,
Undergraduate Students in the University of Toronto, or Graduate
Students in the School of Graduate Studies of the University of Toronto.
As such they are both “employees” of the University and scholars at the
University pursuing undergraduate or graduate studies or post-doctoral
research.
24. The number of members of the Bargaining Unit who were actively
employed as of February 2015 (the Spring Term) was approximately
5,300 persons. Most members of the Bargaining Unit have guaranteed
subsequent appointments for work in the Summer 2015 or Fall 2015
Term, even if not actively employed as of February 2015.
25. In this round of bargaining, the Union chose to focus on improving the lot
of two particular subsets of its members – Graduate Students who
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continue to work beyond the “funded cohort” and Graduate Students in
the funded cohort who receive inadequate guaranteed funding.
History of the Minimum Guaranteed Funding Package, the Collective
Agreement and the “Funded Cohort”
26. Of particular importance to the dispute between the Parties is the concept
of the “funded cohort”. The “funded cohort” is the group of graduate
students at the University to whom a commitment of minimum graduate
funding, made up of a combination of fellowships, stipends from research
grants, external scholarships, bursaries, and up to a stipulated maximum
of hours of bargaining unit work (for which no hourly wages are received),
is made. Although it varies between Departments, it is typically provided
for one year of a doctoral-stream masters’ degree and four years of a
doctoral degree, or five years of a doctoral degree in cases where the
Masters' degree is unfunded.
27. The very foundation of the system of guaranteed funding for graduate
students is deeply enmeshed with the modern history of the Parties`
collective bargaining relationship. In late December, 1999, the members
of the Union commenced a strike lasting through January, 2000,
highlighting inadequate funding and the economic circumstances of
graduate students.
28. Concurrently, in December 1999 in the shadow of the looming strike, the
University announced a task force chaired by the Vice Provost, Students,
Ian Orchard to study graduate student financial assistance. The Employer
agreed to include a representative of CUPE Local 3902 as part of the
membership of the Orchard Task Force. This was confirmed in a letter
from Vice President and Provost Adel Sedra to Union negotiator Mikael
Swayze and was significant in bringing the strike to a conclusion.
Tab 3 of Union’s Book of Documents, letter of January 30, 2000, Adel Sedra to
Mikael Swayze
29. The Orchard Task Force first met during the currency of CUPE`s strike,
and subsequently met over the course of the remainder of the Winter and
Spring of 2000. On May 31, 2000, the “Orchard Report” was released,
recommending among other things the establishment of a minimum
funding guarantee for doctoral-stream graduate students. The specific
recommendations included the following:
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That the university, SGS, faculties, and graduate units work
towards providing a guaranteed minimum level of financial support
to all of its doctoral-stream students equivalent to $12,000 per
year (indexed according to cost-of-living) plus tuition (domestic or
visa) for the first 5 years of study, including, where necessary, 1
year at the master's level. (As part of this process, it is assumed
that units will undergo a review of their programs to define
master’s students who are legitimately in a doctoral-stream, versus
those who are legitimately in a terminal master’s.) The Task Force
believes that, while $12,000 plus tuition is an achievable target in
the short term, a more appropriate goal is $15,000 plus tuition.
The Task Force also believes that high need students will naturally
require higher levels of funding.
Tab 4, Union Document Book, Report of the Task Force on Graduate Student
Financial Assistance, May 31, 2000
30. The Employer subsequently implemented a funding guarantee, creating a
“funded cohort”, in the fall of 2000. At the time of its introduction, the
guaranteed funding commitment was the recommended $12,000.00 plus
tuition. Seven years later, in 2008, that minimum commitment was
increased to the $15,000.00 plus tuition which was originally
recommended in the May 2000 Orchard Task Force Report. There have
been no adjustments for inflation since then. The amount remains
$15,000 for September 2015, even after the strike and recommendations
from a second Provostial Task Force in 2012 which will be discussed in
greater detail below.
31. The dual roles of bargaining unit members, as students and as employees,
have been intertwined since the formation of the Bargaining Unit. Since
certification, the scope of the bargaining unit has contained language
linking the scope of its coverage to the status of members of the unit not
only as employees but as students, graduate students, or post doctoral
fellows.
32. The Union has consistently sought to improve conditions for its members
both as students and as employees. In particular, the Union has sought to
improve the remuneration for the work its members are required to
perform for the Employer, to limit the amount of bargaining unit work that
may be included in the calculation of a graduate student`s guaranteed
funding, and to reduce the tuition and ancillary fees its members are
required to pay.
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33. The expired Collective Agreement, as have several of its predecessors,
contains provisions linking the work members of the Bargaining Unit
perform to the funding they receive to support their graduate studies.
Articles 26.09, 26.10, and 26.11, for example, operate to protect the value
of negotiated wage increases against offsets in the guaranteed funding:
26:09 The parties agree that once an offer of work has been
made to and accepted by an employee, there shall be no reduction
in the hours of work for that appointment, nor a reduction in
monies from other sources, as a result of the employee’s obtaining
additional work elsewhere. When the additional work continues to
be offered to the employee in subsequent years and is work
covered by this bargaining unit, and is in a department other than
the employee’s department of registration (which is the
Department responsible for the employee’s funding package), the
parties agree that these protections will continue into the future.
26:10 The parties agree that any increase in the wage rates
negotiated by the parties shall not be offset by monies from other
sources in subsequent sessions, all other things being equal.
26:11 The parties agree that any increase in the wage rates
negotiated by the parties shall represent an increase in the total
earnings of an employee for that session.
34. More particularly, the expired Collective Agreement contains the “LETTER
OF INTENT: Calculation” which sets out the intentions in its preamble
as follows:
Whereas the University of Toronto is committed to excellence in
research and graduate and undergraduate education, and to
providing a breadth of outstanding programmes of graduate
studies that will attract the best and most diverse international
student body
And
Whereas the University of Toronto’s commitment includes the
achievement of a level of funding to a specific set of graduate
students referred to as the “guaranteed cohort” and the
commitment will remain while this collective agreement is in effect
And
Whereas the offer of an opportunity to earn income through
appointment to a position in this bargaining unit may be utilized
as a part of a “package” to reach the guaranteed funding
level referred to above for a significant number of graduate
students
Ta 2, Union’s Book of Documents - Expired Collective Agreement in effect from
February 24, 2012 to April 30, 2014, page 48-49 [emphasis added]
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35. Since 2002, each round of bargaining has included an agreement, spelled
out in successive Letters Of Intent, between the Parties regarding the
calculation of the maximum number of hours of work which can be
included in required hours for guaranteed funding for employees in the
funded cohort. The maximum in 2002 was 260 hours. That number
successively declined as a result of collective bargaining over the life of
the 2002 -2005 collective agreement until 2005 when it reached 210
hours, where it remained until the 2011-2012 round of bargaining. In the
2011-2012 round of bargaining between the Union and the Employer, the
Parties agreed that the maximum “required hours” allowably included in
the funding package would be reduced to 205 hours effective September
2012. In each round of bargaining, the Parties have agreed the terms of
the “Letter of Intent: Calculation” may be subject to the grievance and
arbitration procedure in the event of a violation.
36. These Letters of Intent are the product of longstanding bargaining and
agreement between the Employer and the Union reflecting the articulation
of the funding guarantee, the required included hours of work of
employees, and the ability to negotiate meaningful wage increases for
members of the bargaining unit which are not simply cannibalized by
altering the balance between pay for employment and income from
fellowships or other sources. Including more hours of bargaining unit work
in the funding package calculation, or treating wage increases as counting
towards the value of the funding guarantee, devalues the work and the
minimum guarantee. Since the introduction of guaranteed minimum
funding for graduate students in 2000, the Union has consistently sought
to preserve and enhance stable funding, tuition relief and employment
income for graduate students.
37. The Union has bargained limitations on the amount of bargaining unit
work which can be included in the funding package for funded cohort
members. However, limits on the amount of work outside the bargaining
unit that members of the Bargaining Unit may be required by their
individual Department to perform at the University in order to receive the
minimum funding do not exist in the collective agreement. The most
common type of “additional required work” is Research Assistance work,
some of which is covered by the Collective Agreement between the
University and the Steelworkers Local 1998 and all of which is outside the
scope of the Unit 1 Bargaining Unit. Since 2008 there has been a marked
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increase in the amount of non-bargaining unit Research Assistant work
that funded cohort students have been required to perform in order to
remain entitled to their minimum funding package.
38. It should be noted the Union was able to require the Employer to prepare
an “unpublished” letter as part of the February 27, 2015 MOS wherein the
Employer agreed to “freeze” the hours of Research Assistance work
required to obtain the minimum funding in the Faculty of Arts and
Science, and at the Scarborough and Mississauga campuses.
Tab 28, Union’s Document Book, unpublished letter re: Research Assistant work
in the Faculty of Arts and Science and Tricampus PhD programs, February 27,
2015
39. In 2012, the members of the Union accepted a tentative collective
agreement which provided for a Provostial Committee on Graduate
Student Financial Support, on which the Union held two seats. The
“JOINT LETTER OF INTENT: Terms of Reference for a Working Group on
Undergraduate Tutorials” is found at page 51 of Tab 1, the expired
Collective Agreement. The letter of intent stated that:
“The first task of this Committee will be to consider the balance
among the components of funding referred to above, with a
specific focus on employment income”.
40. The report of Working Group was released on January 30, 2014.
Tab 5, Union’s Book of Documents - Provostial Committee on Graduate Student
Financial Support: Report to the Provost, January 30, 2014
41. None of the recommendations of the Report were implemented by the
Employer as of the date of the agreement to refer outstanding issues in
dispute to interest arbitration on March 26, 2015.
42. The history is clear. From the outset, the Union has sought to obtain,
preserve and enhance minimum graduate student funding, and has fought
to maintain real employment gains in terms of wage increases for its
affected members. The goal throughout has been to achieve stable
sufficient income for its membership during the course of their
employment and graduate studies.
43. Of the 79 departments of the Employer in which graduate funding is
provided to the funded cohort, the majority provide funding at the
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minimum level of $15,000.00. According to the Employer’s School of
Graduate Studies, in 2010-11 there were 52 departments providing the
minimum, and in 2011-2012, 48 departments.
Tab 6, Union’s Book of Documents - Graduate Funding Structures for U of T Ph.D.
Stream Programs: 2010-11 Values for Canadian Students, Office of Graduate
Education Research, School of Graduate Studies, July 25, 2011, Table 2, pages 5-7
of 26
Tab7, Union’s Book of Documents - Graduate Funding Structures for U of T Ph.D.
Stream Programs: 2011-12 Values for Canadian Students, School of Graduate
Studies, September 7, 2012, Table 2, pages 5-7 of 24
44. The Union has manually reviewed the websites for the various
departments of the Employer to determine the current value of the
minimum funding package as of April, 2015 and prepared an update to
the 2011-2012 document as this information has not been publicly
circulated by the School of Graduate Studies. This review suggests that
the number of departments of the Employer which provide funding to
members of the funded cohort at the minimum $15,000.00 level has
increased from 48 to return to the number of 52.
Tab 8, Union’s Book of Documents – Minimal Annual Amount of Funding (Exclusive
of Tuition Fees and Non-Academic Ancillary fees) Charts (CUPE research prepared
by Elizabeth Blackwood)
45. Further, the data provided by the Employer to the Union in March during
the strike estimates that within the funded cohort, 868 students received
guaranteed funding of less than 18,000.00, with a very significant number
of those – 277 - receiving funding in the $15,000 to $15,500 bracket.
This is the same data the Union relied on for its costings.
46. In respect of tuition and other fees, as recommended in the Orchard Task
Force recommendation set out above and subsequently implemented, the
guaranteed funding for graduate students in the funded cohort includes,
in addition to the guarantee of funding, the coverage of tuition (either
domestic or international, as the case may be) and ancillary fees.
47. For students in doctoral programs who are beyond the funded cohort,
tuition and graduate fees are not funded or reduced until the student has
gone beyond the maximum time limit for completion of their degree (6
years), at which point, for the 7th and subsequent years (assuming the
student has received an extension) the student pays only 50% of the
domestic tuition plus fees. In effect, there is a gap between the end of
the guaranteed funding with its payment of tuition and fees and the
commencement of a reduced tuition rate.
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48. Similarly, no tuition or fee relief exists for students in the second year of a
doctoral-stream Masters’ degree, and who are therefore beyond the ambit
of the “funded cohort” as it relates to masters’ degree studies.
49. In 2000, the Orchard Task Force recommended the continuation of tuition
relief for students in their 5th and 6th years of their doctoral studies. A
form of tuition relief, known as the Doctoral Thesis Completion Grant, was
subsequently introduced, which provided 50% tuition relief in the form of
an as-of-right grant for domestic and international graduate students
beyond the funded cohort.
50. However, in 2010, the University announced significant changes to the
Doctoral Completion Grant, replacing it with the “Doctoral Completion
Award”. The Doctoral Completion Award was no longer an as-of-right
grant, but was a competitive grant determined at the departmental level
applied to one year of doctoral studies. The effect was to reduce the
number of post-cohort doctoral students who qualified for tuition relief by
comparison to the as-of-right system under the Doctoral Completion
Grant. In the absence of an express provision in the Collective Agreement,
the Employer may unilaterally change the terms of these ad-hoc forms of
assistance.
51. The need for adequate tuition relief for its members is a significant issue
for the Union. The Union has consistently pressed for tuition relief for
bargaining unit members and for graduate students generally, and in
particular for students beyond the funded cohort. This issue was
identified as one of the core issues in the current round of bargaining.
History of 2014-15 Bargaining to renew the Expired Collective
Agreement
52. As per Article 14.1 of the Bylaws of the CUPE Local 3902, the Bargaining
Team is composed of two members of the Executive of the Local and four
(4) members of a possible five (5) Divisions of the Bargaining Unit as
follows:
14.1 BARGAINING COMMITTEES
a) Composition of Committees:
i. The Unit 1 Bargaining Committee shall consist of seven (7)
voting members: the Chair, one (1) representative from and
named by the Executive Committee, one (1) representative from
and named by Stewards’ Council, and one (1) representative from
each of four of the five Unit 1 Divisions as set out in Article 9.3 (a)
16
above. In addition, the national representative assigned by the
Union to the Local shall be a non-voting member of the committee.
53. Members of CUPE Local 3902, Unit 1, chose the 7 members of their
Bargaining Team in the spring of 2014 as follows:
1.
Vice Chair, Unit 1 – Ryan Culpepper, Local 3902 Executive
member and co-chief negotiator
2.
Chair’s Designate – Daniel Brielmaier, Local 3902
Executive member – External Liason Officer
3.
Division 1 (Humanities departments) Mary Yoshinari
4.
Division 3 (Physical Sciences departments) Lin Gao
5.
Division 4 (Life Sciences departments) Joan Ngo,
6.
Division 5 (Independent colleges, School of Continuing
Studies, Services (for disabled students, etc.) Kate
Brennan
7.
Stewards’ Council Representative - Tom Laughlin
54. Division 2 (Social Sciences departments) was not represented on the
Bargaining Team. The co-chief negotiator was Jesse Payne, an employee
of Local 3902. Tamara Williams, another employee of Local 3902 recorded
all negotiation sessions. Leanne MacMillan, CUPE Servicing Representative
was assigned by CUPE to assist Local 3902 in Unit 1 negotiations.
55. The members of the Union developed its seven (7) Bargaining
Commitments. Their primary focus was to improve the situation for the
lowest paid members of the bargaining unit in a number of ways. The
highlights of the seven Bargaining Commitments were as follows:
1. (core issue) To bargain for an increase to the Fellowship
Portion of the Guaranteed Minimum Funding Package
with the goal of off-setting the cost of inflation over the years
and matching the poverty line (calculated at the pre-tax low
income cut off for a family of one in the city of Toronto as
defined by Statistics Canada) so as to reach a value that is
competitive with other Guaranteed Minimum Funding Packages
offered by publically-funded Universities.
2. (core issue) To bargain for improved and expanded stipulations for
the composition of the Guaranteed Minimum Funding Package with
the goal of reducing, or eliminating, the calculation of
17
hours that can be included, limiting the kind of work to include
only TA work, and creating fellowship equity across cohorts.
3. (core issue) To bargain for Wage Increases
4. To bargain to increase healthcare benefits and their accessibility
for members by
increasing the HSCA to $1,000 or buying into a defined
benefits plan of equal value (a decision to be made by the
members at a subsequent meeting) and with the goal of improving
equitable access to healthcare for international students
5. (core issue) To bargain for increased financial support for
members in unfunded cohorts with the goal of increasing available
CUPE funds for these members and achieving tuition breaks for
unfunded senior student-workers
6. To bargain for improved equity amongst equity-seeking groups
here defined as international students, unfunded members,
and people with dependents. The BT also invites
recommendations from individual members on how to do this, or
committees struck for the express purpose of coming up with
these recommendations. If the timeline allows, there may be an
opportunity of turning these recommendations into core issues at a
subsequent Unit 1 meeting
7. To bargain for improvements to our conditions of employment,
specifically with regards to doubling childcare funds, to subsequent
appointments, hiring and re-hiring language, CI training, and
protection from harassment and bullying
Tab 9, Union’s Book of Documents, Bargaining Commitments, Unit 1, [emphasis
added]
56. The Union presented its proposals to the Employer on July 31, 2014. After
ten (10) meetings, only two (2) articles were agreed.
57. Between November 12 and 18, 2014, 1, 723 members of the Bargaining
Unit voted 90.3% in favour of strike action (if necessary). This was the
largest turnout ever of Unit 1 members for a strike vote.
58. On December 12, 2014, the Union applied for conciliation.
59. On January 26, 2015, members of the Bargaining Unit voted at a
membership meeting to set a strike deadline of Friday February 27, 2015.
60. The first meeting with the conciliation officer was held on Tuesday
January 27, 2015, with subsequent dates of Tuesday February 17, 2015
18
and Tuesday and Wednesday February 25 and 26, 2015. The Union
prepared a summary of outstanding issues as of February 17, 2015.
Tab 10, Union’s Book of Documents February 17, 2015 Local 3902 outstanding
issues
61. On February 4, 2015, at the request of the Union, the “no board report”
was issued by the Director of Dispute Resolution Services of the Ministry
of Labour, clearing the way for a lawful strike/lockout in accordance with
the terms of the Labour Relations Act.
Tab 11, Union’s Book of Documents, “No-Board” report, February 4 2015
62. The Union advised the Employer of its strike deadline of February 27,
2015.
63. In the early hours of Friday February 27, 2015 the bargaining team
members on behalf of the Employer and the Union reached a
memorandum of agreement for the renewal of the expired Collective
Agreement. Paragraph one of the MOA required members of the
respective bargaining teams to “unanimously recommend to their
principals” ratification of the MOA.
Tab 12, Union’s Book of Documents February 27, 2015 signed Memorandum of
Agreement, 55 PDF pages
64. A membership meeting was scheduled for the afternoon of Friday
February 27, 2015 at Convocation Hall to review the terms of the MOA.
The Bargaining Team prepared a number of documents in support of the
MOA and provided a verbal presentation.
65. The Bylaws of the Local contain a two step process for ratifying a
collective agreement. The first, sometimes called the “ascension meeting”
requires members to vote on whether to send a tentative agreement to a
secret ballot vote. The second step, if approved at the “ascension
meeting”, is a ratification vote.
66. The Bylaws provide as follows:
14.2 RATIFICATION
a) In the event that the Bargaining Committee accepts a Collective
Agreement, it shall be presented to the unit membership for
ratification in a referendum conducted in accordance with the
provisions of Article 13 herein. The referendum question shall be
19
“Shall the Memorandum of Agreement be ratified?” The conduct of
any ratification vote shall conform to all relevant legislation.
b) Before subjecting a Collective Agreement to a ratification vote
as per Article 14.2 (a), the decision to hold a ratification vote shall
first be approved at a unit meeting by a majority of votes cast.
c) Any Collective Agreement entered into on behalf of the Local
shall be signed by the Chair, or, where 7.3 (n) applies, by the
respective Unit Vice-Chair, and by the Secretary-Treasurer.
67. Despite the efforts of the Bargaining Team members, the 802 signed-in
members of the bargaining unit attending the ascension meeting voted
overwhelmingly to NOT approve the holding of a ratification vote on the
Employer’s February 27 2015 offer. Following the meeting, in accordance
with the membership meeting, the Executive of Local 3902 voted
unanimously to authorize a legal strike and accordingly advised the
Employer.
68. Members at the meeting overwhelming spoke against the MOS. In
particular they raised concerns about the inadequacy of the financing and
structure of two letters of intent, found at page 5 of 10 of the February
27, 2015 MOA, which read as follows:
Letter of Intent: Tuition Assistance Fund
Effective September 1, 2015, the University will administer a
tuition assistance fund in the amount of up to $700,000 annually
for the support of employees in this bargaining unit who are
registered in doctoral stream programs to assist in defraying fees.
Letter of Intent: Graduate Student Bursary Fund
Effective September 1, 2015, the University will pay to the Union
$400,000 annually for the creation of a graduate student bursary
fund for employees in this bargaining unit.
69. Members speaking expressed skepticism that the Bursary Fund amount of
$400,000 annually would be sufficient to lift the guaranteed minimum
funding package for graduate students from $15,000 to the poverty line
for the City of Toronto. Members were appalled the Bargaining Team
would have agreed to a fund which had no clear data about how many
employees actually were only guaranteed the $15,000 and would
therefore be entitled to access the $400,000 fund.
20
70. Further, members were concerned that a “per member” amount for the
tuition assistance fund which failed to guarantee relief against the higher
tuition paid by international students would not meet the Bargaining
Commitments of the Union. Again, members were appalled the Bargaining
Team would have agreed to a fund without clear data about how many
employees actually paid full tuition and ancillary fees until the relief
available in the 7th and subsequent years of study became effective.
Members also expressed concern that tuition relief was not available for
second-year Masters students whose guaranteed funding had ended.
Finally, members expressed concerned the fund still did not provide
sufficient resources to provide assistance to international students whose
tuition fees are so much higher than the fees charged to domestic
students. Without the data indicating how many international students
were in this unfunded cohort, the Union would have no idea if the fund
was sufficient to meet its goals.
71. Members of the Union commenced preparations for a withdrawal of their
labour and on Monday March 2, 2015 set up picket lines at the various
locations of the Employer at St. George Campus, University of Toronto
Scarborough Campus (“UTSC”) and University of Toronto at Mississauga
(“UTM”).
72. Through the conciliator, the Union requested data from the Employer with
respect to the numbers of employees in the bargaining unit who received
the minimum funding package and beyond. The Union asked for the
information in increments of $500. After numerous requests and receipt of
data which did not fully address the Union’s request, the Employer
ultimately provided the necessary data to the Union on March 10, 2015.
Tab 13, Union’s Book of Documents March 10, 2015 data from the Employer
73. Members of the Bargaining Team, with the assistance of Graduate
Students from the Economics Department, began to “crunch” the numbers
to determine the amount of funds required to provide a supplement to the
lowest paid members of the Bargaining Unit and to provide tuition
assistance to members of the Bargaining Unit who fell outside the “funded
cohort” including a break down between domestic and international
students.
74. A membership meeting was scheduled for Friday March 13, 2015.
Members of the Bargaining Team presented a proposal which might, if
21
supported by the membership, form the basis of a proposal to present to
the Employer as a way of resolving the strike and creating a renewal
collective agreement. It was entirely based on the data received by the
Employer.
75. The Bargaining Team proposal involved the reallocation of funds, actually
reducing the across-the-board wage increases and redirecting those
savings and some funds from the Financial Assistance Fund as proposed
in the February 27, 2015 MOA, to provide more money for the “tuition
assistance” (i.e. tuition assistance for persons outside the funded cohort in
years 5 and 6 of their doctoral degrees and second year Masters students
no longer in the funded cohort) and “student bursary” supplement (i.e.
funds for the purpose of supplementing graduate students in the funded
cohort whose guaranteed funding was less than what the membership felt
acceptable).
76. The members of the Bargaining Team did not formally recommend the
proposal at this meeting, but rather sought direction from the membership
as to the best way forward. Members asked direct questions about the
reliability of the data received from the Employer and the sustainability of
the funds and, significantly, where the risk fell, in the event the funds
were insufficient.
77. A motion came from the floor to support the proposal. An amendment to
the motion was passed which required an additional $50,000 from the
Financial Assistance Fund to be specifically directed to the Doctor of
Musical Arts (DMA) program in Performance.
78. The motion, as amended, was narrowly passed, with 280 votes in favour
and 251 against. It altered the Union’s bargaining commitment, which
had been to seek an increase in the amount of the minimum guaranteed
funding package to $23,000 for all graduate students, to a supplement or
“top up” for members of the Bargaining Unit only to $17,500 on an annual
basis. Further, it created eligibility criteria for tuition assistance for
members of the Bargaining Unit who fell outside of the “funded cohort”.
On the basis of this resolution of the membership, the members of the
Bargaining Team drafted language which reflected the eligibility criteria
for the “bursary” and “tuition assistance” funds, and which also made the
provisions part of the collective agreement rather than “letters of intent”
subject to renegotiation in each subsequent round of bargaining.
22
79. On Sunday March 15, 2015, the Union presented a 7 page document to
the conciliator for transmission to the Employer. In accordance with the
resolution of the membership, it, earmarked money from the Financial
Assistance Fund towards the Doctor of Musical Arts (DMA) program in
Performance as well as reallocated money from the “across the board”
wages set out in the rejected February 27, 2015 MOS to what the Union
was now presenting as two new articles, retroactive to September 2014
for a “Tuition Assistance Program” and a “Minimum Funding Commitment
Supplement”.
Tab 14, Union’s Book of Documents March 15, 2015 proposal from the Union, 7
pages
80. In addition, the Union presented an excel spread sheet which contained
the eligibility criteria and assumptions for a 3% annual increase in tuition
and a 1% increase in the size of eligible members of the Bargaining Unit.
This spreadsheet calculated the numbers of eligible members and costs
based on the Employer’s March 10, 2015 data and the “eligibility criteria”
developed by the Union for entitlement to funding.
Tab 15, Union’s Book of Documents March 15, 2015 Union Excel Spread Sheet,
unprintable, electronic copy only
81. On Monday March 16, 2015, members of the Bargaining Team attended at
the offices of the Ministry of Labour to receive a counter proposal from
the Employer. It was unanimously rejected by members of the Bargaining
Team as it completely failed to recognize the different criteria, and
accordingly lower amount of money needed for the “Tuition Assistance
Program”, failed to address the need for additional money for the
“Supplement” and contained offensive terms with regard to the Union’s
internal decision making process as required by its Bylaws.
Tab 16, Union’s Book of Documents March 16, 2015 proposal from the Employer, 14
pages
82. On Tuesday March 17, 2015, the Employer gave the Union, through the
conciliator a revised proposal with a midnight deadline.
Tab 17, Union’s Book of Documents March 17, 2015 proposal from the Employer, 15
pages
83. The Employer`s March 17, 2015 counter offer “front end” loaded money
in the 1st and 2nd year of the funds to provide the funding which the Union
23
predicted would be required in the 3rd year of the funds. The assumption
was that “surplus” could be carried over for each fund. The focus was
allowing the Union and the Employer to make a determination about
eligibility in August of each year, such that eligible members from the
prior September would receive the two forms of assistance.
84. The Union requested and received an extension to the deadline to noon
on Wednesday March 18, 2015.
85. At its meeting on Wednesday March 18, 2015, the voting members of the
bargaining team voted 4 to 2 to reject the March 17 2015 offer of the
Employer and to present a counter proposal to the Employer. Most
significantly, Ryan Culpepper, the Vice Chair of the Bargaining Unit who
was also the co-chief negotiator, voted against the counter proposal.
86. The March 18, 2015 Union counter proposal accepted the basis of the
Employer’s March 17 proposal, subject to amendments to the Letters of
Intent regarding the Tuition Assistance Fund and the Graduate Student
Bursary, and the addition of an “unpublished” letter from the Union which
stated the Union’s belief that the data provided in good faith by the
Employer on March 10, 2015 demonstrated that the amounts committed
to the Tuition Assistance Fund and the Graduate Student Bursary were
sufficient to achieve the Union’s objectives which had been set out in its
March 15 proposal.
Tab 18, Union’s Book of Documents March 18, 2015 proposal to the Employer, 2
pages
87. The slim majority of the voting members of the Bargaining Team hoped
that the mutual intent about the sufficiency of the funds was reflected in
the unpublished letter from the Chair of the Union, Dr. Erin Black to Dr.
Angela Hildyard on behalf of the Employer and the reference to the March
13, 2015 Union proposal based on the data received from the Employer.
88. Later in the day on Wednesday March 18, 2015, the Employer ultimately
substantially accepted the counter offer of the majority of the Union’s
Bargaining Team, presenting a proposal to the Union which incorporated
the Union’s suggested text for the Letters of Intent for both the Tuition
Assistance Fund and the Graduate Student Bursary fund.
Tab 19, Union’s Book of Documents March 18, 2015 proposal from the Employer, 16
pages
24
89. Significantly, unlike other Employer proposals, the Employer`s March 18,
2015 proposal did not require unanimous consent of the Union’s
Bargaining Team. Only four (4) of the Bargaining Team members signed
the MOS: Kate Brennan, Lin Gao, Joan Ngo, and Tom Laughlin.
90. More significantly, the two members of the Bargaining Team who were
Executive Officers of Local 3902, Daniel Brielmaier and as previously
indicated, Ryan Culpepper, Local 3902 Executive member and Co-Chief
Negotiator, refused to sign the MOS.
Tab 20, Union’s Book of Documents March 18, 2015 signed MOS from the Employer,
67 pages
91. The Union held a membership meeting on Friday March 20 2015. At that
meeting, Ryan Culpepper was permitted to voice his reasons for refusing
to sign the MOS. A copy of his remarks is contained in the Union’s Book of
Documents.
Tab 21, Union’s Book of Documents March 20, 2015 remarks of Ryan Culpepper, 4
pages
92. Daniel Brielmaier also voiced his dissent from the Memorandum, indicating
that he refused to sign the MOS because he believed it did not adhere to
the intent of the March 13, 2015 membership resolution.
93. In response to concerns raised by members, the “ascension” vote was not
done by a show of hands as it was done on Friday February 27, 2015, but
by secret ballot. Ultimately, the members narrowly agreed to allow the
March 18, 2015 MOS to be put to a full ratification vote of the
membership. A total of 789 members voted to allow the MOS to be put to
a larger ratification vote, while 739 members rejected the MOS outright.
94. The membership ratification vote continued over the weekend of March 21
and 22, 2015. After hours of counting, the result of the vote was released
early in the morning of Monday March 23, 2015. The members voted 1101
to 992 to reject the terms of the March 18, 2015 MOS.
95. The membership’s rejection of the Memorandum is highly significant. The
union members were entering the fourth (4th) week of a strike and yet
still rejected the approach of the March 18, 2015 Memorandum which
failed to guarantee the minimum $17,500 amount and failed to place the
risk of increased eligibility and the accordingly increases access to a fixed
25
annual sum on the Employer. On February 27, the members voted to
commence a strike by rejecting the unanimous memorandum which did
not contain guarantees. Now, with the issues considerably narrower,
members voted to continue the strike into the fourth week to reinforce the
requirement to negotiate clear minimum guarantees and tuition relief.
96. The narrative of the Union shifted to “write it down”. The Parties seemed
to be “ad idem” with respect to the purpose and goals of the funds and
the amount to be paid under the funds. The Union view at this point,
following the membership rejection of the March 18, 2015 MOS, was that
it should be a simple matter of the Employer agreeing specifically to
provide sufficient funding each year to meet the purpose and goals of the
funds (i.e. a minimum funding guarantee of $17,500.00 plus tuition and
fees for the funded cohort, and tuition relief to reduce effective tuition
and fees to 50% of domestic tuition for doctoral students beyond the
funded cohort). The Union’s position in this regard is reflected in its
release to its members on March 23.
Tab 22, Union’s Book of Documents March 22, 2015 union webpage
www.http//:cupe3902.org, Press release
97. On Tuesday March 24, 2015 the Employer offered the Union binding
arbitration to deal with the outstanding matters in dispute.
98. On Wednesday March 25, 2015, the members of the Bargaining Team
determined they did not have the authority under the Local Bylaws or the
Labour Relations Act to enter into an agreement for binding arbitration
without the consent of the membership. The Executive, on consideration,
was not in a position to make a decision regarding binding arbitration
without membership approval.
99. On March 25, 2015, the Bargaining Team sent one more proposal to the
Employer in an attempt to reach a tentative agreement. The Union again
tried to ensure the Employer bore the risk of financing the two funds in
the event more members were eligible than were determined based on
the March 10, 2015 data provided to the Union by the Employer. The
March 25, 2015 Union proposal also ensured the Employer would be
responsible for the administration of both funds. The Employer rejected
the offer and repeated its offer for binding arbitration.
Tab 23, Union’s Book of Documents, Union proposal through mediator Peter
Simpson re letters of intent
26
100.
The Union held a special meeting on Thursday March 26, 2015 to
consider the question of whether to refer the outstanding items in dispute
to arbitration. The motion, again by secret ballot vote, was passed by a
75% to 25% margin with 942 members voting in favour, 318 voting
against the motion.
SUBMISSIONS REGARDING ISSUES IN DISPUTE
101.
The items in dispute include the following;
a. Structure and amount for the Tuition Assistance fund, including
whether an article subject to grievance and arbitration or a
renewable letter of intent subjective to grievance and arbitration
and assumption of risk in the event eligible members exceed the
annual allocated funds.
b. Structure and amount for the Graduate Student Bursary Fund,
including whether an article subject to grievance and arbitration or
a renewable letter of intent subjective to grievance and arbitration
and assumption of risk in the event eligible members exceed the
annual allocated funds, and whether the Fund will be administered
by the Employer which has sole access to the information regarding
eligibility.
102.
As demonstrated by the costing spreadsheet provided by the Union
to the Employer in the Union’s proposal of March 15, the underpinning of
the Union’s position is that based on the data provided in good faith by
the Employer on March 10, 2015, and on the assumptions contained
there, the money the Employer wishes to allocate for each of the Funds is
sufficient to achieve the mutual objectives for each of the Funds.
Specifically, the funds committed to the Tuition Assistance Fund of up to
$600,000.00 in each year of the Agreement (commencing in September
2015 for the 2014-2015 period), as set out in the Union’s proposal of
March 18, and in the Employer’s proposal of March 18, should be
sufficient. and committed to the Graduate Student Bursary Fund of
$1,045,000.00 in each year of the agreement commencing September 15
2015 for the 2014 – 15 period set out in the same proposals, should be
sufficient. The major “IF” and the issue at this interest arbitration is
whether the numbers of persons who are eligible increases in any of the
27
years. If the eligible persons increase, the fixed sum amounts will not be
sufficient to meet the objectives of the Funds.
103.
The objectives for the two funds were set out clearly in the Union’s
March 15 2015 offer.
104.
In respect of the “Tuition Assistance Fund”, the Union’s objective is
to ensure tuition relief for bargaining unit members who have gone
beyond the ambit of their guaranteed funding – i.e. who are in the fifth
and sixth years of their doctoral degree, or who are in the second year of
a doctoral-stream masters’ degree – to reduce their effective tuition and
fee cost to 50% of domestic tuition plus fees.
105.
The March 10, 2015 data provided by the Employer and relied by
the Union in its March 15, 2015 Union proposal demonstrates that there is
sufficient funding in the Employer’s proposal to accomplish this, so long as
certain assumptions remain true and in particular, so long as the number
of persons emerging from the funded cohort into eligibility for this tuition
relief does not dramatically rise, and so long as tuition fees remain stable.
These factors are entirely within the control of the Employer.
106.
With that in mind, the Union’s proposal of March 25 – similar in
language and object to its proposal of March 15, and based on the same
data – provides for an Employer administered fund to guarantee that
bargaining unit members in either the second year of their doctoralstream masters’ degree, or the fifth and sixth year of their doctoral
degree, - i.e. those beyond the funded cohort – receive assistance, once
internal and external awards are applied against their tuition, such that
they will pay only 50% of domestic tuition plus fees. The funding
commitment, already made, becomes a guarantee, and the risk of change
is allocated to the Employer, who has more control over the factors that
affect the underlying assumptions.
107.
With respect to the Graduate Student Bursary, once again, the
Union’s position is built on what the Union believes is a shared view that
the funding commitment made by the Employer to the Graduate Student
Bursary will be sufficient to meet the Union’s stated objectives of ensuring
that members of the funded cohort in its bargaining unit receive sufficient
funds to “top up” the minimum funding guarantee to the level of
$17,500.00. However, the Union again took the position in its March 25,
2015 that the Employer, which on its own and through its Departments,
28
determines how many members of the Bargaining Unit are guaranteed
less than $17,500 annually, should bear the financial risk if more members
are eligible for the fund than the assumptions of the March 15, 2015
proposal contemplated.
Comparator – York University
108.
Like the University of Toronto, York University is a major Canadian
university, highly ranked internationally (albeit significantly lower than the
University of Toronto), and located in Toronto with a significant graduate
program. Teaching assistants at York University, like those at the
University of Toronto, have been unionized since the mid-1970s, first with
the Graduate Assistants’ Association which became the Canadian Union of
Educational Workers, and subsequently the Canadian Union of Public
Employees following the merger of the CUEW with CUPE in 1995.
109.
Like graduate students at the University of Toronto, York University
graduate students receive funding during the course of their graduate
studies. For members of the bargaining unit, and most particularly for
doctoral students, the Collective Agreement itself contains a combination
of provisions which amount to a minimum guarantee of funding during six
years of a doctoral program for doctoral students who obtain a bargaining
unit teaching assistantship.
Tab 24, Union’s Book of Documents, Collective Agreement, York University and
CUPE Local 3903, Unit 1, 2011-14
Tab 25, Union’s Book of Documents, Memorandum of Settlement York University
and CUPE Local 3903, for renewal agreement 2014 - 17
110.
Specifically, teaching assistantship remuneration at York is such
that in any 12-month period of September through August, a teaching
assistant’s “first full teaching assistantship” (which is distinguished from
additional teaching assistantships obtained during the same period, but
which may be made up of fractional teaching assistantships to the level of
a full teaching assistantship) is paid at a stipulated salary level. In
addition, each “first full teaching assistantship” attracts an additional
“grant in aid”, additional financial support for graduate students (in the
form of a bursary, as T4A income) which is contained in the Collective
29
Agreement and has been increased in value in the course of collective
bargaining over the years.
111.
In the case of doctoral students, the Collective Agreement also
contains a “priority pool” which entitles doctoral students to priority in
obtaining a teaching assistantship, once having obtained an initial
teaching assistantship, in each of up to six years while a full-time Ph.D.
student, amounting to an effective guarantee of up to six years of
teaching assistantships [Article 12.03, collective agreement, page 32].
112.
Further, the specific letter of agreement regarding additional
funding for priority pool members creates an additional annual guarantee
ranging from $5,253 for 2014-2015 to $5,384 in 2016-2017. This
additional guaranteed funding may be provided in the form of additional
work, or in the form of non-employment assistantships or scholarships.
This additional financial support for doctoral students in the priority pool
has been increased in value in the course of collective bargaining over the
years.
Tab 24, Page 63 of Collective Agreement, as amended by page 12-13 of
Memorandum of Settlement
113.
The additional funding available to “priority pool” members is also
applicable to incoming first-year doctoral students.
114.
Although the additional guaranteed funding may be provided in the
form of additional teaching assistantships, graduate assistantships, or
research assistantships – some of which may require work in exchange –
or scholarships, it nonetheless amounts to a substantial guarantee.
115.
The three components of the minimum guaranteed funding
available to priority pool members -- salary, grant-in-aid, and the
additional funding for priority pool members -- have increased annually for
the past many years (unlike the University of Toronto’s minimum
guarantee for the funded cohort, which has remained static since 2008 at
the level of $15,000.00).
30
116.
By way of an example, a doctoral student who is awarded a Course
Directorship will be entitled to $20,753.12 for the 2015-16 year which will
increase to over 21,000.00 by the last year of the agreement.
117.
A doctoral student who is awarded a full teaching assistantship at a
level below a Course Directorship will be entitled to $19,610 for the 20152016 year which will increase to $20, 376 by the last year of the
agreement.
118.
In addition to the above, the York agreement also contains
significant tuition relief negotiated between the Parties. Article 10.12
contains significant Graduate Financial Assistance funds, on a per-member
basis, for all members of the bargaining unit. These per member amounts
increase over the life of the Collective Agreement. Enhanced per member
amounts of financial assistance for members of the priority pool is also
guaranteed and also increases over the life of the agreement. This is
effectively a form of relief against tuition, amounting to a significant
rebate of fees to students who are registered graduate students and are
employed in the bargaining unit.
119.
There is also specific protection against increases in tuition and
fees for each bargaining unit employees (with certain exceptions for
professional programs): see Letter of Intent 6.
120.
Despite considerable differences in the structure of funding, and in
particular despite the different expectation as to the potential
performance of work in exchange for additional funding, it is significant
that the York-CUPE Unit 1 agreement has enshrined minimum funding for
members of the bargaining unit in the doctoral stream and in particular
includes negotiated secure amounts not only for salaries but for grant in
aid and additional funding during the course of six years of doctoral study.
121.
The York agreement contains per-member guarantees in respect of
the “grant in aid” portion of their remuneration, which applies not just to a
smaller funded cohort but applies to all graduate students. The York
agreement contains specific, negotiated per-member guarantees of
additional funding for “priority pool” doctoral students. The York
agreement contains per-member Graduate Financial Assistance funding,
31
and an effective protection against tuition increases, not limited to a
“funded cohort”.
122.
These amounts are either contained directly in the Collective
Agreement or in a Letter of Intent, but regardless are per-member
amounts which are therefore not subject to decreases based on external
factors such as the number of persons eligible for relief. Whether the
Employer at York increases tuition, or the number of members in the
bargaining unit changes or any other variable changes, the Employer must
still provide the per member entitlements to eligible members.
123.
CUPE Local 3903 was on strike at York University concurrently with
the strike at the University of Toronto. Members of Local 3903 Unit 1
remained on strike from March 3 to April 1, 2015, shortly after the March
26, 2015 agreement at the University of Toronto to take the outstanding
items there to interest arbitration.
124.
Based on this comparison, it is submitted that the appropriate
outcome in respect of the University of Toronto is a similar protection of
tuition relief and graduate student assistance funds on a per-member
basis as suggested by the Union, rather than capped funds which could
result in decreases in real value to individual members based on factors
outside the control of the Union or the individuals. This is an appropriate
result following the “replication” principle which will be discussed in
greater detail below.
Law and the application of interest arbitration caselaw to this case
125.
The principles which apply in interest arbitration are well known.
An interest arbitrator, in settling a collective agreement, should attempt to
replicate the result closest to that which would have been achieved in free
collective bargaining.
Quinte Health Care Corp. and UNIFOR Local 380, 2014 CarswellOnt 211, January 7,
2014, Albertyn
65 Participating Hospitals and CUPE, Re:, 1981 CarswellOnt 3551, Weiler, Paul, June
1, 1981
32
Beacon Hill Lodges of Canada v. H.E.U., 1985 CarswellBC 2912 (Hope), March 31,
1985
St. Clements (Rural Municipality) v. I.U.O.E. Local 987, 2012 CarswellMan 1, award
of A. Blair Graham, June 4, 2012
126.
The principles of decision making that apply in a context where the
parties have the right to strike and lock out, and have exercised it, are the
same as those that apply where there is no right to strike or lock out. The
economic issues must be decided on the application of the replication
principle.
Mount Allison University and Mount Allison Faculty Association, unreported award of
Arbitrator Kevin Burkett, November 17, 2014
127.
In applying the replication principle, an arbitrator should have
regard to the context of the dispute, including the particular identity of the
parties and the history of the dispute leading up to the arbitration.
FortisBC Inc. and I.B.E.W., Local 213, 2014 CarswellOnt. 3762, unreported award of
arbitrator D. Larson, Nov. 4, 2014
128.
The context to be considered may include regard for tentative
agreements reached by the parties during negotiations. However, such
agreements are not determinative of the outcome.
65 Participating Hospitals and CUPE, Re:,supra
Thames Emergency Medical Services Inc., unreported award of arbitrator Burkett,
May 5, 2004
FortisBC Inc. and I.B.E.W., Local 213, supra
St. Clements (Rural Municipality) v. I.U.O.E. Local 987, supra
129.
A tentative agreement, while admissible and relevant, is less
persuasive when it has not been unanimously recommended by a
bargaining committee:
Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 180 L.A.C.
(4th) 66 (Burkett)
130.
An important feature of the identity of the University of Toronto is
its position as a world leader among academic institutions and its
33
commitment to the pursuit of excellence. It is appropriate to consider
that the University has, and should maintain, a place at the “top of the
market” in its pursuit of academic excellence.
University of Toronto v. University of Toronto Faculty Association, 2006 CarswellOnt
11578 (Winkler) March 27 2006
University of Toronto v. University of Toronto Faculty Association, unreported award
of arbitrator Teplitsky, October 5, 2010
The Tentative Agreement – why it should not govern
131.
On March 18, a tentative agreement was reached between the
University and a bare majority (four out of six) of members of the Union
bargaining committee. As noted above, that agreement was subsequently
rejected by the Membership in a secret ballot vote over three days of
voting and at the end of the third week of a strike.
132.
The Employer proposal which led to the memorandum, unlike the
other proposals of the Employer in this matter, did not require a
unanimous recommendation from the Bargaining Committee.
133.
Of particular significance is the decision of the Union team co-chief
negotiator, Ryan Culpepper to decline to sign the memorandum and to
speak against its ratification.
134.
The text of Mr. Culpepper's remarks are at Tab 21 of the Union
document book. They set out, in persuasive detail, why he believed the
absence of a per member entitlement would ultimately dilute the value of
the two funds. Ultimately, this issue of who should bear the risk if the
amount of the funds were insufficient to meet the goals of the funds
because more people were eligible, is the one before us in this interest
arbitration.
135.
A tentative, unratified memorandum of settlement is not a
collective agreement. It is not a document to be blindly adopted by
interest arbitrators as a decisive indicator of where the appropriate
agreement lay:
65 Participating Hospitals and CUPE, Re:,supra
34
Thames Emergency Medical Services, supra
FortisBC, supra
Clements (Rural Municipality), supra
136.
This is particularly the case where members of the bargaining unit
have exercised their statutory rights in a ratification vote to accept or
reject a tentative agreement. The Ontario Labour Relations Act contains a
statutory entitlement for members of a bargaining unit to reject any
tentative agreement reached between an Employer and representatives of
members of a Union.
Ontario Labour Relations Act, 1995, S.O. 1995 c. 1, section 44
137.
In 65 Participating Hospitals, supra, arbitrator Paul Weiler
commented on the presumption that a tentative agreement should form
the basis of an interest arbitration award. In the first place, he noted, the
context for the settlement is relevant. For example, it is relevant whether
or not a tentative settlement was reached in the context of an already
existing pattern of settlements or legislated restrictions on compensation:
15
Still, I do not think that this result should be automatic.
Each of the arbitrators who have addressed this problem has been
careful to phrase his reasoning in terms of a general presumption,
rather than a binding rule. Almost all of the cases where the issue
has been posed have involved single hospitals where one side or
the other wanted to deviate from a pattern of settlement which
had already emerged in the sector. The one situation where this
was not true involved centralized bargaining in 1978 between
CUPE and 55 of these Participating Hospitals. However, not only
had that settlement, the one which had been rejected by the CUPE
membership, already been accepted by the SEIU that year, but it
also embodied the maximum compensation increase which was
permitted by the Anti-Inflation Guidelines. Thus, the decision of
Kevin Burkett, the arbitrator in that case, to impose the settlement
in his award took place in quite a different setting than this one;
where this tentative agreement was one which would cover 65
Ontario Hospitals and 16,000 service workers, but would also
establish rather than reflect a standard for the entire round of
Hospital negotiations which ultimately will set the terms of
35
employment for 75,000 unionized hospital workers in 180 hospitals
in the Province.
65 Participating Hospitals and CUPE, Re:, supra, paragraph 15
138.
Further, the blind imposition of the tentative settlement would
undermine the very purpose of a ratification process, rendering any
decision by members of a bargaining unit to reject an agreed upon
tentative settlement meaningless:
16
In my view it would not be desirable to establish in the
jurisprudence of interest arbitration an unyielding doctrine that a
tentative memorandum of settlement should always be the basis
for the arbitrator's award. The first and most important reason is
that such a doctrine would eviscerate the process of membership
ratification of the contract terms by which they are to be
governed. The members could vote to ratify the settlement, but
never, effectively, to reject it. Unquestionably employee rejection
of a compensation package which has been labouriously produced
at the bargaining table can be a traumatic experience for the
employer, which is deprived of the settlement that it thought it
had, for the Union officials whose judgment has been repudiated,
and for the general public, which may experience the cost of
further impasse. It is also true that the employees can be
unrealistic in their expectations, or even that they may be
manipulated by other Union officials who are not responsible for
the agreement. (We shall have some further things to say about
this settlement in that regard.) But this is the price to be paid for
industrial democracy and for ultimate membership control of the
actions of their Union leaders. In the outside world of industrial
relations, workers jealously guard their right to meaningful
ratification votes, and, if they reject a tentative contract, they have
the right to try to persuade the employer to give them something
more or something different (perhaps with the pressure of a
strike). Hospital workers should not have taken away from them
the right to persuade their arbitrator that the initial bargain,
however bona fide in its inception, was and is clearly inappropriate
now.
65 Participating Hospitals and CUPE, Re:, supra, paragraph 16
36
139.
Furthermore, a process whereby the members of a unit vote to
reject a proposed settlement, only to see the same proposed settlement
imposed by an arbitration process which takes the tentative settlement as
a given basis for their award, threatens to delegitimize the very process of
interest arbitration:
17
A further reason for such an escape hatch is to be seen in
the unfortunate scenario which overtook this set of negotiations.
Suppose a group of hospital workers fervently believes that the
settlement negotiated by their leadership is patently unfair. The
forum in which the law tells them they should make that case is
binding arbitration. But the arbitration fraternity is now to tell
them (through this jurisprudence) that the tentative agreement
will be imposed on them nonetheless. In that setting, the only
recourse which may seem open is illegal (and uncontrolled) strike
action, endangering patient safety and eroding the fabric of law in
the industrial community.
65 Participating Hospitals and CUPE, Re:, supra, paragraph 17
140.
Thus, while the terms of a tentative settlement may be relevant
and persuasive, they are not decisive, and an arbitrator should still
consider departure from such terms where it is warranted:
19
The point of these considerations, though, is simply to show
why it would be unsound industrial relations for an interest
arbitrator automatically to ratify a tentative settlement reached at
the bargaining table, no matter how dubious its terms may look in
retrospect. In no way do they blunt the force of the Hospital's
underlying point that the initial memorandum of agreement must
be a major factor in our deliberations. If seasoned representatives
produce a comprehensive package out of the give and take at the
bargaining table, in pattern-setting negotiations which obviously
were seen as significant as were these ones, the product of their
work must be treated as strong prima facie evidence of an
economically-sound bargain. In the world of fully free collective
bargaining, where Union members do have the option of rejecting
such a settlement, everyone knows that any further improvements
will take place within the general parameters of this initial
37
package. It would be counterproductive for the Union negotiator
to return to the table with his first lengthy shopping list of
demands, many of which he had already dropped or compromised,
and also to adopt a radically different view of an appropriate wage
increase. This would be a recipe for an immediate breakdown in
talks and a lengthy strike. The Ontario hospital worker may not be
able to strike, but he also does not have to strike in order to win a
new contract. Thus, as and when the Union goes to arbitration, it
should not be able to treat the initial memorandum as just the
plateau from which it now presses a host of additional, rich
concessions. The arbitrator, like the negotiators themselves,
should treat the settlement as fixing the ballpark figures for the
new contract. For reasons which I have already developed, the
arbitrator should be prepared to scrutinize the terms of the
tentative
agreement,
perhaps
find
that
certain
items
are
misguided, or at least that others have been overtaken by
changing economic conditions. But he should begin that inquiry
from the premise that the terms actually agreed to by the
representatives of the parties are a sound and workable basis for
the new contract, to be revised only if and where this is clearly
shown to be warranted.
65 Participating Hospitals and CUPE, Re:, supra, paragraph 19
Arbitrator Kevin Burkett, in Thames Emergency Medical Services
Inc., found that although admissible, a tentative agreement prior to an
interest arbitration is not decisive:
141.
“…This is not to say that the rejected memorandum of settlement
is determinative. Rather, it is evidence of the prior good faith
bargaining and it is evidence of what the respective bargaining
committees considered to be a full, final and fair resolution in all
the circumstances. It follows that there is an onus upon a party
seeking to depart from the memorandum to justify within the
context of a post-rejection interest arbitration the departure that it
seeks, just as it would have to do under free collective
bargaining.”
Thames Emergency Medical Services Inc. v. O.P.S.E.U., supra, page 13
38
142.
In FortisBC Inc., arbitrator Larsen, commenting on Thames, put
the matter this way:
“In my view, that is the proper approach to be taken by an
interest arbitrator in the quest to replicate the agreement that the
parties might have made in other circumstances. A tentative
agreement that is not ratified is by definition not one that could be
taken to be one that the parties would ordinarily have adopted.
However, it can properly be taken to form a substantial basis of
such agreement that with modifications could be expected to
make it entirely acceptable to the parties.”
FortisBC Inc., supra, at paragraph 95
143.
In considering the persuasive value of a prior tentative settlement,
the absence, or presence, of a unanimous recommendation is a clearly
relevant factor.
Toronto Transit Commission v. Amalgamated Transit Union, Local 113, at
paragraph 12
Quinte Health Care Corp. and Unifor, Local 830, Re, 2014 CarswellOnt 211, at
paragraph 19
144.
In Toronto Transit Commission, supra, arbitrator Burkett
commented on the issue of a split in the Union bargaining committee. In
that case, the Employer had not insisted on a unanimous recommendation
in the Memorandum, and seven members of the Union's 16 member
bargaining committee refused to sign the Memorandum. The Employer
argued that the split was immaterial. Arbitrator Burkett commented,
…I disagree. The split in the Union bargaining committee,
especially with all the maintenance department representatives
dissenting, must render the Memorandum less persuasive as
evidence of a fair and reasonable outcome, especially as applied to
the maintenance department employees. Furthermore, in the
normal course, an employer makes its final offer conditional upon
the unanimous or close to unanimous recommendation of a
union's bargaining committee. In this case, the Employer was
content to take its chances on ratification with almost half of the
Union bargaining committee recommending rejection. In these
circumstances, the Employer must have understood that there was
a strong likelihood of rejection and that, if rejected, there would
39
have to be some modifications to the Memorandum in order to
bring about a settlement.
Toronto Transit Commission, supra, paragraph 12
145.
In this case, the split on the committee was particularly significant.
The memorandum was rebuffed by one of the co-chief negotiators of the
bargaining committee, Ryan Culpepper. In addressing the membership on
March 20, 2015 regarding his decision to reject the memorandum, Mr.
Culpepper recalled specifically the particular reasons for taking forward
proposals which underscored the $17,500 per-member minimum
guarantee and the specific per-member tuition assistance for doctoral
students outside the funded cohort.
146.
Not only was there a split in the committee, with a co-chairperson
of the bargaining committee dissenting; the dissenters’ position
represented the nuanced, progressing position developed with input from
the membership after several weeks on strike. The dissenters’ position
and the rejection of the memorandum by the membership is not Weiler’s
“return to the table with the first lengthy shopping list of demands”, but is
a position appropriately reflecting the narrowing focus of collective
bargaining leading towards the resolution of the narrowing outstanding
issues.
147.
In Salvation Army Long Term Care Facility, 2000 CarswellOnt 9565
(Burkett), April 19, 2000, arbitrator Burkett expanded on the rationale for
following the terms of a tentative settlement, and his concerns
surrounding departure from such a settlement:
“9
In the case at hand, the parties are to be commended for
having narrowed the issues in dispute to one; overtime. However,
the issue that has been left unresolved has a significant economic
impact such that if one were to give life to the Union demand, the
effect would be to ignore the economic parameters established by
the parties in their pre- and post-memorandum bargaining without
there being a compelling reason for so doing. Indeed, in contrast
to the HOODIP/sick leave issue in re: 65 Participating Hospitals
(supra) that was viewed by Professor Weiler as a cost neutral
issue
that
would
not
likely
have
provoked
an
economic
confrontation under free collective bargaining, the same cannot be
40
said concerning the overtime issue here. Furthermore, the
suggestion that we simply accede to the will of the membership on
this issue in isolation of all the agreed upon items is particularly
problematic in the context of a first collective agreement where
major breakthroughs from existing practice are more difficult to
achieve and tradeoffs as between priority issues more likely to
occur. In this regard we note that, albeit through the mechanism
of pay equity, the parties have agreed to a substantial wage
increase in addition to all of the other provisions of this first
collective agreement. Accordingly, in the absence of changed
economic circumstances and in the face of the imminent
renegotiation of this collective agreement commencing within a
few weeks, we are not prepared to alter the economic parameters
of the memorandum beyond those already agreed by the parties
in their subsequent bargaining.
Salvation Army Long Term Care Facility and Ontario Public Service Employees
Union, 2000 CarswellOnt 9565 (Burkett), April 19, 2000, at paragraph 9
148.
In the case at hand, the issues that remain are issues which
resonate clearly with the Union demands at the commencement of the
work stoppage and, more importantly, resonate with the very issues that
provoked a rejection of the March 18 memorandum of settlement. The
issues are not ones which are outside the economic parameters of the
negotiations of the Parties to that point but are consistent with the
economic parameters based on data provided by the Employer and relied
on by the Union and the value of the economic package in respect of
those matters contained in the rejected memorandum.
149.
Nor can it be said that the rejected memorandum represents the
consensus of informed negotiators which should be preferred over the
views of those less informed. The proposal was rejected by two of the six
voting members of the Union committee including a senior member of the
negotiating team because it fell outside the parameters of the Union
demands recently reviewed and confirmed with its members on March 13,
2015. The rejection of the proposed settlement by the membership was
certain to result in the continuation of a strike which had already run since
February 27.
41
150.
Having regard to all of the circumstances, in this case, the terms of
the March 18 memorandum should not govern. In this case – having
regard to:
-
-
-
the principles of replication, as they apply to circumstances where
there has been a failure to ratify a negotiated settlement, as
articulated in the arbitral caselaw;
the absence of a consensus of the Union negotiating committee itself
and the refusal of two members of the committee, including Mr.
Culpepper, to support the memorandum, in fact speaking against it;
the nature of the items still in dispute which, it is submitted, were
items of enough significance to suggest that continued economic
conflict and further negotiation would result if the matter were left to
free collective bargaining
It is submitted that the March 18 memorandum should not govern the
outcome of the dispute.
151.
The amendments proposed by the Union deal with the fundamental
issue of who should bear the financial risk of meeting the goals of the two
funds. The Union Bargaining Committee relied on the data provided to it
by the Employer on March 10, 2015 when it presented its options at the
March 13, 2015 membership meeting and developed and presented its
March 15 2015 proposals. The bare majority of the Union Bargaining
Committee relied on the data provided to it by the Employer when it
reached the March 18 2015 tentative agreement.
152.
However, the members of the bargaining unit rejected those terms
and voted to continue a strike. Given the Employer’s control of the
variables which might dilute the goals of the Fund, the Union’s position at
this interest arbitration is one which is consistent with the rationale behind
the March 18, 2015 tentative agreement, while at the same time gives
meaning to the right of the members of the bargaining unit to reject a
tentative agreement which did not meet their concerns about
sustainability of the funds.
153.
Having regard for the above, including the recognition that the
University of Toronto is a world leading institution with a need to attract
42
and retain graduate students in its continued pursuit of academic
excellence, the Union’s proposals should be adopted.
Is there a demonstrated need for the language proposed by the Union?
154.
There is no dispute between the Parties as to whether there will be
two new provisions in the agreement between the Parties. It is not
disputed that there will be two new financial aspects to the agreement
addressing a new graduate student bursary and new tuition assistance
respectively. Nor is there a dispute that these involve a significant
financial commitment.
155.
Rather, the issue in this arbitration is the need to enshrine these
two types of funding for graduate students – a top-up to the minimum
guarantee of $17,500.00 for members of the bargaining unit who are in
the funded cohort, and the tuition assistance for certain cohorts of
graduate students outside the funded cohort – in the collective agreement
as individual entitlements.
156.
Unless there is a significant change in the number of persons
eligible for the funds, the amount of funding contained in the Employer’s
offer is sufficient to maintain such guarantees. The data provided by the
Employer, and the Union’s costing based on that data, confirm this. The
significant variables affecting eligibility include the following:



the number of people in the funded cohort or beyond the value
of the minimum funding packages provided by individual
department,
the amount and existence of other sources of funding, including
additional non-bargaining unit employment income and
stipendiary amounts, which make up part of the guaranteed
funding package or provide tuition relief to 5th and 6th year
doctoral students and second year Masters students; and
tuition costs.
157.
The necessity of individualized enshrined entitlement arises out of
the question of who appropriately bears the cost if conditions affecting
those variables change. The conditions affecting eligibility are in large
43
measure determined not by the Union, or the affected bargaining unit
members, but by the Employer, including its departments.
158.
It is the Employer that controls admissions into doctoral-stream
programs, influencing the size of the incoming funded cohorts. It is the
Employer that controls access to internal grants and fellowships – and
controls restrictions in access to those funds – which bears on the
necessity to supplement those funds to meet the minimum guarantee for
members of the funded cohort. It is the Employer that controls tuition
(subject to the Provincial Government in some instances), which bears
directly on the cost of funding tuition relief. It is the Employer who
determines the proportion of domestic to international students.
159.
The potential effect of employer control is not speculative, but is
borne out by historical examples. As noted above, the Orchard Task
Force recommended funding for upper-year doctoral students outside the
funded cohort to provide assistance against tuition costs for students
outside the funded cohort, a recommendation which was implemented
originally in the form of the Doctoral Thesis Completion Grant. The
Doctoral Completion Grant was an as-of-right grant for doctoral students,
providing guaranteed funding relief in the 5th and 6th years of a doctoral
program.
160.
However, in 2010, the Doctoral Thesis Completion Grant was
substantially revised and replaced with a competitive award known as the
Doctoral Completion Award. That award was fundamentally different, and
replaced a stable as-of-right with a less predictable and less stable form of
support which was subject to a competitive process carried out at the
departmental level based not on financial need but on considerations such
as academic merit, publications, conference presentations, and the like.
The effect was a significant reduction in persons eligible for the grant.
The effect of such a development to a fund such as the Tuition Assistance
Fund would be to significantly increase the number of persons eligible for
relief, diluting the value of the fund. It would substantially alter the basis
for the “costing” of the Employer and the Union’s proposals for the Funds
such that members would not receive money to bring them to the amount
of $17,500 annually.
44
161.
This example highlights why the Union needs an article in the
Collective Agreement with specific “as of right” per member entitlements
which cannot be altered by decisions of the Employer or its Departments
to increase the number of eligible persons for each of the funds.
162.
The Employer also holds control over the amount of non-bargaining
unit work which can be assigned to account for part of the funding
package. Since 2008, there has been a marked increase in the amount
Research Assistant work which is outside the bargaining unit and which
has been assigned by departments to graduate students to account for
part of their guaranteed funding.
163.
The balance between employment and non-employment sources of
income to make up the guaranteed minimum funding package has been a
consistent source of discussion and negotiation between the Parties. As
previously indicated, it led to the creation of a Provostial Task Force which
had a CUPE 3902 had representative and which made recommendations
including a recommendation that the University, by policy, make a
determination as to how much of the minimum guaranteed funding can
come from employment sources (i.e. bargaining unit teaching
assistantships and non-bargaining unit Research Assistant or Graduate
Assistant employment).
164.
It should be noted again the Union was able to require the
Employer to prepare an “unpublished” letter as part of the February 27,
2015 MOS wherein the Employer agreed to “freeze” the hours of Research
Assistance work required to obtain the minimum funding. This letter was
limited in scope to the Faculty of Arts and Science, and the UTSC and
UTM campuses.
Tab 28, Union’s Document Book, unpublished letter re: Research Assistant work in
Faculty of Arts and Science and Tricampus PhD programs, February 27, 2015
165.
There currently is no policy or collective agreement provision
stipulating a balance between work and non-work funding of the minimum
guarantee. A shift in this balance in the absence of a “per person” or
individualized minimum entitlement would have a predictable effect on the
sufficiency of the graduate student bursary fund and its ability to fund to
the targeted $17,500.00 level.
45
166.
These simple examples of unilateral changes by the Employer in
the absence of an express commitment in the collective agreement
demonstrate the need to enshrine these benefits in the collective
agreement in the form of guaranteed individual entitlements rather than
as capped funds. Without this, the funds as proposed by the Employer
can easily be devalued – and the amount of assistance available to
individuals eroded – for reasons beyond the control of the Union and
beyond the control of the affected eligible bargaining unit members.
167.
This devaluation could occur, as suggested by Mr. Culpepper in
addressing the membership, through a simple decision by those
departments which already offer more than the $15,000.00 stipulated
minimum funding guarantee, to reduce the amounts they pay in order to
take advantage of the funds available in the Graduate Bursary fund. Prior
experience with the Doctoral Thesis Completion Grant and the increase in
Research Assistant work as part of the requirement of the funding
package demonstrate the need for the funding to be in the nature of a
clear per-member entitlement. In its absence individual Departments can
make decisions which devalue a “lump sum” annual amount.
168.
Both of the new funds – the Tuition Assistance Fund and the
Graduate Student Bursary – are new items, on either party’s terms.
Therefore, this is not a situation in which the Union must show that there
is a “demonstrated need” for a departure from the “status quo”.
However, based on the above, it is submitted that there is nonetheless a
demonstrated need for the new funds to be “per member” entitlements
which are included in the collective agreement. This will ensure that the
objectives of the funds are properly accomplished and protected. The
Union’s proposals are preferable to ensure the funds meet the objectives
for which they are sought.
CONCLUSION
It is respectfully submitted that in light of all of the foregoing the
union proposals should be awarded.
46
Taking into account all of the relevant factors, including the history of the funded
cohort and post-funded cohort tuition assistance, the history of bargaining, the
particular circumstances in the current round of bargaining, the University’s place
as Canada’s leading graduate institution and a global leader of academic
excellence and its appropriate role as a leader at the “top of the market” in
respect of academic employment conditions, and the appropriate comparison to
York University, it is submitted that the Union’s proposals are appropriate and
they should be awarded, and the Union so requests.