Poker PRB Style
Unfortunately, even if the Mayor, Council and CUPE all agreed to remove them, PRBs are still on the table! It is vital to CUPE members who have lost millions in salary to understand all the ramifications around the issue that the Mayor has said is the threshold one. It may not be a "benefits" issue any longer but it may well have a consequence that has not been completely appreciated so far. Read on
I have written quite a number of BLOGs on the CUPE/City strike, too many actually. Oh to be able to write a border BLOG again [sigh].
Most people I thought understood that I have not taken a postion on what either side wants or who is right or wrong for the simple reason that neither side has ever revealed publicly exactly what they have offered!
That is why this letter I just received from a loyal reader bothered me so much and I thought I needed to explain again what I perceived my role to be. I am choosing to do so over the issue of PRBs, the threshold issue according to the Mayor, as an example of my Blogging technique on this file:
- "I have read and enjoyed your blog for two or three years and I have admired your efforts to expose the M.O. of His Arrogance, Mayor Francis and his enablers at the Windsor Star.
However, as a persistent critic of Mr. Francis, I must confess that I like the manner in which he has dealt with on-going strike mounted by CUPE as I find no redeeming features in the strategies and tactics of the Union. In my view they represent everything that is wrong with unionism in general and public service unions in particular.
I worry that you have gone over to the Forces of Darkness and become the Voice of CUPE.
CUPE is undeserving of your support."
Gosh, I felt like Darth Vader after reading that!
Clearly, I have not done a good enough job of defining my role in the mind of at least one reader. I take legitimate criticism seriously and try to improve.
I can understand why my reader takes this perspective. Naturally, since the bias of the Star is so one-sided, and to be blunt, where I get most of my information other than scoops from inside sources, most of my commentaries tend to reflect a pro-CUPE perspective to try to balance out what is said, especially the propaganda spewing forth from the City.
People seem to forget that I have been very critical of CUPE leadership, accusing them of lack of strategy and not doing a good enough job of getting the public onside nor pressuring the City or our MPPs sufficiently.
Nevertheless, I will try and redeem myself. I will try to ensure that readers understand, unless I choose to set out a position, that my function is to point out the story behind the story---the stuff the media does not always talk about--- why things are being done or said or not and what the consequences are. I also try to put a different "spin" on matters to get you thinking about alternatives.
I am going to do so in the context of the Post Retirement Benefits issue even though Jean Fox has just said they are "off the table" whatever that means since it is not clear.
I will give you some insight into how I think when I consider a problem and how I arrive at the conclusions I do when I write a BLOG. I warn you now that my conclusions may be considered pro-CUPE so those of you who do not have the stomach to see someone supposedly supporting union workers should stop reading now. I am not pro or anti-CUPE or the City but going where my thoughts lead me as you shall see.
The following is from the City Strike Website on PRBs. I am going to "fisk" it and then draw some conclusions from it.
Just to make it clear as well, I am NOT expressing a legal opinion one way or the other and no one should rely on my discussion other than as a thought provoker. The issues are very serious and advice from people experienced in the area is needed.
That does not mean that I or anyone else should remain silent because there are matters that need addressing if an informed conclusion is to be reached.
- What Are Post Retirement Benefits?
When an employee retires with an unreduced pension in accordance with the OMERS pension requirements, the City continues to pay the same health and medical benefits on the employee’s behalf until their death and until the death of their surviving eligible spouse and dependants.
Post retirement benefits deal only with ongoing health benefits after retirement. Pensions are not post retirement benefits and are described on the pension page.
City of Windsor employees receive post retirement benefits through a by-law that was established by City Council in 1950. Retirement benefits have never been part of CUPE’s collective agreements nor have they ever been negotiated.
[If the PRBs have never been part of the collective agreement, then why was it a "Threshold issue" in a collective bargaining situation that had to be negotiated now, after almost 60 years? A practice and code of procedure had been ongoing for so much time that people relied upon as being a City worker. Why was it being discussed at all? Should it ever have been "on the table" in the first place?
Of course, the City has the right as does the Union to make matters a collective bargaining issue but were they legally entitled to do so? See below where I say they could not in this case.
Presumably, all that the City should have done is merely amend the by-law as Eddie tried to do with the Councillors PRBs, a Motion he lost. Does this mean that Eddie knew that Councillors would NOT have amended the by-law?
If it was a simple amend the by-law issue, then why didn't Council just do it? One would have to make the assumption that the City has received a legal opinion telling them they cannot do so! That is why it was not amended and why it became a collective bargaining issue.
As I argued before, given Eddie's Motion loss and the confimation of the Councillors' By-law, he could now not change the By-law for the employees. The City was legally estopped from doing so.]
Retirement benefits are extended to employees who are eligible, and their spouses and dependants for life.
Post Retirement Benefits
UPDATED MAY 13, 2009
The City is offering that all current CUPE regular full-time employees, as of December 31, 2008 maintain the status quo. These employees including all current retirees remain eligible for retiree benefits, as negotiated, for life under the existing eligibility rules. The City has never proposed to eliminate these benefits or cap them at age 65 for existing regular full-time employees at any stage of the collective bargaining.
[Again, why is it a collective bargaining issue given it is a by-law issue. The City made it so because we have to assume they cannot change the employee rights under the By-law.
It is the existing PRBs that are the big financial hit for the City today, not future benefits. "The City has never proposed to eliminate these benefits." Is that because this step is coming next and the City is taking it one step at a time (and holding off a possible S&P downgrade) or is it really because the City has a legal opinion saying that they cannot do so and therefore do not even try it! Who knows?]
For further clarification, members of CUPE Local 543 who are temporary full time employees of the Corporation and were hired on or before December 31, 2008 and having maintained continuous service to the Corporation notwithstanding the mandatory break in service, obtain a regular full time position with the Corporation, and subsequently complete their probationary period shall be entitled to retiree benefits, upon their retirement if so eligible as per the OMERS eligibility requirements for an unreduced pension which are in place at the time of retirement.
[For example: If a current employee is a temporary full time employee and was hired on or before December 31, 2008, they will still qualify for life time benefits if and when they become a regular full time employee with continuous service, upon their retirement if so eligible as per the OMERS eligibility requirements for an unreduced pension which are in place at the time of retirement.]
Additionally, members of CUPE Local 543 who are regular part time employees of the Corporation and were hired on or before December 31, 2008 and obtain a regular full time position with the Corporation and subsequently complete their probationary period shall be entitled to retiree benefits, upon their retirement if so eligible as per the OMERS eligibility requirements for an unreduced pension which are in place at the time of retirement.
The City has proposed the new employees of both locals, hired on or after January 1, 2009 would be eligible for post retirement benefits to age 65 if so eligible as per the OMERS eligibility requirements for an unreduced pension which are in place at the time of retirement.
The City recognizes the concern that the Unions have regarding the security of the post retirement benefits held by their current members and the potential risk that these benefits could potentially be bargained away in future collective agreements. To satisfy this concern the City has sought legal advice regarding how to protect these benefits for current employees and has received a framework and language to achieve this protection. The framework consists of:
a) A separate contract with the Corporation outside of the collective agreement to which the local and the national union would be parties;
b) Separate contracts with each individual current employee hired before January 1, 2009 and as described above, which would provide appropriate security.
[I must admit that I find this astounding! Here is one Council going out of its way to bind subsequent Councils forever. Unbelievable.
There was an issue at Council last week I believe where an issue arose which could bind subsequent Councils and Eddie ruled it out of order! Yet here he is prepared to do so.
The absurdity of this is that he has bound the City to unfunded liabilities of about $290M and perhaps more as time goes on for existing employees even if new hires do not get the PRBs. Is that fiscally responsible at a time of the City's supposed economic distress?
Again, why wasn't a simple by-law amendment proposed to take the PRBs away from new hires? Why did we have to go through a strike to accomplish this?
Here is something even more strange. When has anyone ever heard Eddie conceding anything to anyone? Even if a subsequent Council and the Union down the road agreed to eliminate PRBs for EVERYONE, they could NOT do so for employees under what Eddie proposed because each would have a separate and enforceable contract with the City. The City would have to negotiate with each employee. Again, something that makes no sense.
Now believe it or not , the world is logical. If there is something so completely illogical as what I have described, then one needs to figure out the reason why.
My conclusion---the City has a legal opinion that they cannot even do so under their existing by-law. They are pretending to give the Union and the employees something they already have! In other words, the City is offering nothing, the sleeves out of their vest. The employees already have the legal rights that the City is offering.
They may even have a legal opinion as well that there may be no way that they can teminate those rights, even by giving notice, because they cannot act unilaterally in this specific case.
Here is another point. Under Eddie's plan, the Union could not negotiate away the employees' PRB rights since they have a separate legal contract with the City and the City would even give the Union a separate agreement outside of the collective agreement.
What this says to me frankly, is that the Union TODAY may not be able to negotiate away any employees' rights even if it wanted to do so. I have an idea why this cannot be done but I am not certain and it does not really matter. It does depend on the wording of the by-laws, all of which I have not seen. If I am right, the City has NO power to terminate the employees rights. They are vested forever. Perhaps even, and this is really stretching it, for new hires!
If the City has no right to negotiate this and the Union has no right to negoatiate this, then it could never be a collective bargaining issue ever and never should have been discussed at all. It could not be an issue, never mind a threshold issue ever.]
A copy of this framework and language was previously provided so that it may be fully vetted by the Union. Draft contracts with employees will be provided upon agreement of this issue.
To alleviate any further concern in this regard, the City has offered to include this language protection in any documentation the Union wishes including; bylaw, the Collective Agreement, the above noted contracts, the negotiated Minutes of Settlement, and any or all of the above.
[See above. Completely out of character! Can you say desperation?]
The City is willing to establish a joint Benefits Administration Committee with representatives from CUPE Locals 82 and 543, to determine and finalize the mechanism under which any employee funded post age 65 retirement benefits plan will be administered.
Benefits for existing retirees are not impacted by the proposed change for new employees.
Any net savings from active employees and/or existing retirees derived from benefit changes that the Union wishes to put forward (for example, an increase in co-pay, sick day reduction or any other reduction) can be allocated towards an employee self-funded post age 65 retirement benefit plan for employees hired on or after January 1, 2009.
So there you have what the City says and why what they said bothers me.
To be blunt, are we seeing a game of poker being played? It may well be that the City is bluffing completely with nothing in its hands except taxpayer money to try and crush the Union and to take away rights that CUPE members have already without anyone being any the wiser. They may believe that CUPE has not obtained proper legal advice on their position and does not know how strong or how weak their position is.
Or could it be that I am completely wrong and the City is holding a royal flush and CUPE should take the deal or else risk getting a by-law change and losing everything even for existing workers?
Remember how Eddie acted out of the blue with his Motion and took Councillors by surprise. Remember, he and the Star characterized what he was doing was removing benefits for politicians, although it was not. Is he really hoping that the Union turns him down so he can hammer them later and say that he offered them complete protection and they turned him down. Reverse Psychology?
Could it be that there is a 2-step process under way here too for the City as it is for taking away fire and police benefits? Take PRBs away from new hires even though there may be no legal right to do so and then amend the By-law for existing employees or take PRBs away in the next round of negotiating (no wonder the City wanted only a 2-year deal). Everyone would think that the City had the right to do so since a precedent had been set and no one would question it, certainly not a single worker who could not afford the legal fees. And the Union would probably be estopped if it agreed in this negotiating round.
I am not a labour law lawyer and do NOT have the answers to the issues I have thought about nor do I have the documentation or the complete factual background of any of the negotiations to date. I do know that there are interesting issues at play over by-laws, collective agreements and contracts. I certainly do know some of the questions to ask at least.
From the workers' perspective, CUPE should have a legal opinion in its hands over these matters already to know on a reasonable basis what is right and what is wrong. If not, well, I will let you dear reader, figure out what the consequences could be for the Union if they act improprly.
What are the consequences if I am right and the City never had a position. Here are the most obvious ones:
- 1) existing and newly hired workers have PRBs forever and the rights cannot be terminated. The bluffery has poisoned relationships such that the issue can never be resolved honourably.
- 2) if the PRBs, should never have been on the table, then why was it the issue that has kept the workers out for so long
- 3) if it could never have been a collective bargaining issue, why was it raised
- 4) Is this now bargaining in bad faith
- 5) If it is, have employees improperly been deprived of millions of dollars of salary.
Is it any wonder that the City wants the bad faith negotiating action removed! Darn, we would be deprived of Eddie being cross-examined. If CUPE agrees to that term, then I will absolutely oppose the Union! Just kidding.
If I am right in what I am saying , and I am not suggesting that I am at all, or if I may be right, then all I know is that this is a total mess that could give rise to massive litigation that could take years to resolve. What happens to the City and its employees then?
My view: the contract issues other than PRBs, must be resolved now. Once they are, the strike is over but for the PRBs which must be handled separately.
Like it or not, the City, the Union and the employees individually, through a separate negotiating unit not their Union, may have to resolve the issue since the City and the Union may not be able to do so on their own if employees already have individual rights. What is needed now is open and honest discussion about how to resolve this as happened at the Windsor Public Library.
To my reader above, I hope you understand me better now. May the Force be with us!