Thoughts and Opinions On Today's Important Issues

Thursday, July 09, 2009

Double Double Toil And Trouble

Oh what trouble I can foresee. All that work and detailed planning by the Mayor and Council over the last several years to crush CUPE may now result in double the amount of money the City has to pay out in this strike. It won't be double the pleasure or the fun either for taxpayers who have to foot the bill.

This may turn into a Shakespearean tragedy of epic proportions by the time it is over if I am correct. Moreover, the victims will be taxpayers. Again!

Did you see that story that claimed that the City saved $24M so far on the CUPE strike although I expect that most of it will have been paid out for overtime, security, outsourced contractors so that there is very little left to be refunded to taxpayer.

So the net result is probably close to $0 after so many weeks on strike.

But what if I told you, dear reader, that the City will be out another $24M. That is right on top of the $24M paid out. There is a real risk in my opinion that the City will have to pay out another $24M and counting for each day of the strike if it continues on.

What if I told you that also that because of a huge mistake made by the City, that money would have to be paid out to the striking CUPE workers! How angry would you be then?

That truly would be the doomsday scenario for this Mayor and Council and a huge victory for CUPE workers wouldn’t it!

I cannot believe that what I am Blogging now is possible but that is a conclusion that can be reasonably be drawn in my opinion from what has happened over the past few weeks.

Here is the ironic part about it. I got the idea from the failed Motion that the Mayor sprung on Councillors out of the blue at Council a few weeks ago.
Consider these facts. Eddie's failed Motion, according to the Star, was supposed to
  • “to do away with post-retirement benefits for politicians.”

In fact, not only did it never do that, as the Mayor drafted it, but more importantly, Council rejected Eddie's Motion. Accordingly, both existing and newly elected Councillors are still eligible for PRBs to the Mayor’s chagrin I am sure.

Then keep in mind as well another key point that the Mayor repeats ad nauseum which may also come back to bite him and taxpayers:

  • “Francis told reporters that council’s position remains firm on the “threshold issue” of post-retirement benefits for new hires, an issue the employer says is a large and growing unfunded liability for future ratepayers that currently stands at close to $300 million for all city employees. Striking workers account for about 30 per cent of the pension liability.”

  • “The main issue in Windsor's strike remains post-retirement benefits for new employees, which Francis said is a "threshold issue."

  • “Those leaked details revealed that the union had backed down on the city's "threshold" issue of getting rid of post-retirement benefits for new hires.”

  • “Asked whether the city is willing to move on its position on post-retirement benefits for new hires, considered the main stumbling block to a new contract, Francis replied: “Our position has been quite clear from Day 1…”

    Francis said no special council meeting is being called because the city’s negotiating team is not getting any new or different instructions.”

The Mayor has defined the "threshold issue" as PRBs, not wages or guaranteed jobs although that is something that has not yet been reolved. Presumably these other matters would have melted away quickly. But for this huge stumbling block, the Mayor keeps claiming that the two sides were inches away from a resolution of the strike! Who can argue with that! CUPE would not want to as you will see.

Oh me oh my. The poor Mayor may have put his foot in his mouth. It appears to me that the City has been fighting over something that they confirmed existed and which they were not prepared to give up. I would now think that, legally, they are estopped from taking the position that CUPE must give up PRBs for anyone, existing or newly hired.

When they had the chance to amend the City By-law for PRBs for themselves, they did not do so. The fundamental underlying basis for that By-law that gives the Councillors their PRBs is the City employee PRBs criteria!

If the Councillors still have PRBs, as they do, they cannot force the workers now to give up the entire basis of the Councillors' right to PRBs ie the employees' PRBs! Council is stuck by Eddie’s seemingly brilliant manoeuvre which now has backfired in all of their faces.

As Shakespeare also said, they were hoisted by their own petard!

Here is the language of the exisiting City Bylaw. Eddie's Motion set out in the Council Minutes was merely changing the "one half" to "100%"

Note this phrase because it is crucial:
  • "in accordance with the City's existing criteria for staff retiree benefits."

No matter whether Eddie's Motion passed, which it did not, or whether the existing By-law remained as written, which it does, the employees' PRBs rules are fundamental for deciding the Mayor's and Councillors' eligibility.

In other words, the employee PRBs must remain and any efforts to get rid of them are fruitless on behalf of Council especially because of Eddie's move. And under the Procedural By-law, this is this Council's position, unless there is a Reconsideration Motion which Motion will make it even worse for the City! They would have admitted their error.

What does it mean. Very simple. The threshold issue for the Mayor should NEVER have been discussed at all. The City has been negotiating in my opinion on something that should never have been on the table in the first place, never mind as a threshold matter. Even if I am wrong on the fact that it should not have been put on the table in the first place, it should have been removed by the City once Eddie's Motion was lost!

As I am certain that you understand from my perspective, in my opinion, the consequence is that the CUPE members have been on strike much longer than they should have been because of this mistake by the City.
I am sure that a good lawyer can figure out all kinds of ways to make a claim on behalf of CUPE employees for lost wages for being kept out for so much extra time.

Moreover, there are other ways to reach exactly the same point using other legal arguments that just jumped out at me after thinking about what Eddie had done. When the Star failed to make a correction about what they had said happened at Council, I started thinking about the reasons why not. VOILA, one of the answers related here popped out!

If I am right, do not be angry at me, dear reader, when our tax bills go up to pay for all of those extra strike costs and to pay the CUPE strikers too up to $24M and more as the strike goes on. I am a mere lonely BLOGGER. I am not responsible for causing it, just for Blogging the conclusion any lawyer would have reached I am sure if CUPE retained him/her to give legal advice.

It is not my fault. I did not introduce the Motion. I did not have a vote on it:

And this time

My suggestion as to how to resolve this mess. The two sides have to get real and negotiate a common-sense labour agreement now and get to work on how to deal with PRBs in the future by co-operating. The tactics on both sides have not worked. It is time to get on with it!

Unfortunately, in the war to destroy public unions world-wide, Windsor CUPE is NOT the canary and Windsor is NOT the coal-mine. Tough luck!