More on Final Offer Arbitration – A Bad Idea in Every Respect
On Friday, February 8, the Executive Committee of the StFX Board of Governors wrote to inquire whether the StFXAUT would accede to either accepting the administration’s contract offer of February 7, or alternatively, to engage in Interest Arbitration – Final Offer Selection. After conferring with legal and industrial relations experts we formally declined the terms of the letter.
This was done for several reasons. Final Offer Arbitration stipulates that a third-party adjudicator select one of the contract offers, tabled as of February 7, from either the administration or the AUT. This choice would be made “straight up or down,” which means there is no option for compromising or blending any components of either offer. It is take it or leave it. This would subject our offer, which has been carefully crafted and adapted by the Executive Committee, Negotiating Team, and the Handbook and Salary & Benefits Committees (based on membership input through surveys and interviews), to a process with no recourse for further modification. The terms of a return-to-work protocol and “make-whole” provisions, whereby members receive a lump sum payment of withheld salary, would also be determined without our participation. We know our members have confidence in the Negotiating Team to deliver a fair and equitable contract so there is no sound reason to abrogate our collective bargaining rights now.
Why would the StFX BoG Executive Committee suggest this form of arbitration? Given that the administration has adamantly maintained its inability to pay for our requests, choosing Final Offer Arbitration would appear risky, unless they have pre-determined they can in fact pay for those requests. How could a publicly-funded university otherwise jeopardize its fiscal situation by attempting such a rash move? By participating in negative “surface bargaining” (negotiating without a commitment towards a mutually satisfactory deal) for eight months, and benefitting from the AUT’s withdrawal of almost every item with financial implications, there is an added incentive to realize contract savings should the University “win” the arbitration. A “win-win” for the university represents a big loss for the AUT.
Final Offer Arbitration short circuits the due process of a certified bargaining agent (the AUT) by removing decision making and oversight from our Negotiating Team and Executive Committee. Normal contract negotiations resulting in a tentative agreement compels the Executive to take a recommended contract to the members, present the details and answer questions, and finally to have members vote (via secret ballot) on ratification. This is a rigorous democratic process that would be removed in a Final Offer Arbitration as the third-party ruling would simply be received by the AUT with no option for further consultation. The tangible energy AUT members have experienced in this strike action would be dissipated, and the promise to renew future collegial governance undermined.
If Final Offer Arbitration were to be accepted in this round of negotiations it would establish a precedent for future AUT contracts, and likely for other StFX campus unions. To do so would reward the overtly negative and obstructionist behaviour of senior administrators, and clear the way for them to practice the same bad faith bargaining tactics we have witnessed – less than 30 minutes after the Executive received the Arbitration letter an electronic scan was leaked to the entire campus community and media outlets. This most recent example of public bargaining not only interferes with the deliberations of the AUT Executive, it is a cynical attempt to divide our members now on strike, and to confuse students that such arbitration might amicably conclude the contract impasse. To accede to such a pattern of administrative malfeasance would be a poor outcome of our current negotiations, and would demoralize and procedurally hobble the efficacy of the AUT in future years.
The letter sent to all AUT members suggests only two options to conclude the contract impasse: acceptance of the administration’s offer of February 7 or Final Offer Arbitration. There is, of course, another option, and that is for the university to immediately return to the negotiating table and conclude a fair and equitable collective agreement. For the benefit of all parties, especially our students, and for the reputation of StFX, it is this last option that the AUT invites the administration to consider seriously.