Should CUPE Have Kept Education Workers On Strike?

On Sunday night, the possibility of a general strike in Ontario seemed very real. 

On October 31, Premier Doug Ford’s government tabled legislation to impose a contract on more than 55,000 CUPE education workers — a demeaning contract far worse than what the union was asking for, and certainly nowhere near what these labourers deserved. A few days later, in a move that indicated the government was aware this imposition of a contract was illegal, Ford invoked the nuclear notwithstanding clause to override the Charter, enforce the contract and make any strikes illegal, with the promise of hefty fines for leadership and rank and file alike. 

Instead of backing down, CUPE announced that they’d be walking off the job on Friday anyways. They ended up doing so, and many unions across the country, including some who had supported Ford in the most recent election, spoke out in support of them. Over the weekend, there was talk of these unions walking out as well, and with some GO Transit workers already planning to do so on Monday (they remain on strike) things looked ripe for mass action.

On Monday, CUPE was scheduled to give a press conference where the possibility of a general strike would be discussed. Before it could happen, Ford held his own press conference, where he made a series of announcements. He defended his use of the notwithstanding clause and didn’t make any pledges to refrain from invoking it again in the future. But he did promise that if CUPE education workers went back to their jobs, he’d revoke Bill 28 in full, meaning the two sides would be able to return to the bargaining table. After getting his pledge in writing, CUPE agreed to the offer, ending the job action and sending their members back to work, while the union returned to discussions with Ford’s government.

This was a contentious decision on CUPE’s part for the general public, leftists and some of the union’s members alike. For many, it was a victory, bringing the union closer to getting what they wanted. For others, it was a waste of momentum, and a guarantee that much wouldn’t end up being achieved. 

To help continue this necessary conversation, Passage has reached out to two writers with opposing views on the matter to have a written dialogue with each other. Adam King, the author of our Class Struggle newsletter, argues the union made the right call by returning to the bargaining table. Abdul Malik, a Toronto-born screenwriter and journalist who worked on the front lines of Canada’s labour movement for years, argues that the union made a mistake, and that workers should have stayed off the job. 

Their dialogue is below, with Adam writing first, Abdul replying, Adam responding and then Abdul closing off the conversation. Read through their conversation, and then vote at the end for which author you found to be more convincing.

As a leftist opinion publication, Passage hopes to host more of these sorts of dialogues in the future, providing a space for leftist authors to discuss various issues somewhere other than Twitter.

Enjoy!

Adam King: On Monday, I watched a news conference unlike anything I’ve seen in my lifetime. Union leaders from across the country — from the private and public sector — stood together and celebrated the courage of 55,000 education workers who faced down Ontario Premier Doug Ford’s Progressive Conservative government and won. Make no mistake, the repeal of Bill 28, the so-called Keeping Students in Class Act, is an unequivocal victory, not only for CUPE’s Ontario School Board Council of Unions (OSBCU) but also for workers across this country. 

The Ford government overplayed its hand. Given its legislative majority, I presume the government believed that it had the political capital to crush education workers, revoke their Charter rights and impose an insulting contract on them. Instead, Ford and Education Minister Stephen Lecce managed to unite the entire Canadian labour movement in an effort to repeal the bill. The threat of a general strike next week involving private sector unions clearly caused Ford to blink. Polls indicate that a solid majority of the Ontario public was behind the workers. 

The OSBCU made a strategic move by ending their protest and returning to the bargaining table after receiving in writing a commitment from Ford to repeal Bill 28. Given the emphasis placed on repealing the bill during the protest, there was little possibility of continuing the strike (or what CUPE called a “political protest”) further. 

Had the union stayed out, Bill 28 would remain in force. This would mean that, in the event the strike was unsuccessful in compelling the government to present a better offer, Bill 28’s terms and conditions would remain. Not only this, but Ford’s government would have successfully used the notwithstanding clause to pre-empt a public sector strike and impose a collective agreement, signalling to premiers across the country the viability of such a tactic. By returning to the bargaining table, the union no longer faces an imposed contract and has demonstrated that resorting to the notwithstanding clause in a labour dispute has political and economic consequences.

How negotiations proceed from here is, of course, an open question. But CUPE has demonstrated an impressive level of organization and solidarity, and re-enters bargaining with considerable strength and public support. Moreover, union leaders made it clear during their press conference on Monday that they will remain on “standby” until education workers secure a fair deal. Most importantly, CUPE remains in a legal strike position and may call a strike if negotiations again break down by giving the required five-day notice. 

Under which circumstance is CUPE likely to secure an improved collective agreement for its education members: on an indefinite protest with Bill 28 in force, or back at the bargaining table with the legal right to strike restored and access to binding arbitration available? I argue workers are unequivocally better off in the latter scenario, and thankfully the union leadership chose that path. 

Abdul Malik: Monday’s press conference is undeniably a victory for OSBCU — but also indicative of labour’s own shortcomings when it comes to seizing opportunities. 

While Bill 28’s repeal is promising, this recent strike action and everything leading up to it has been about so much more than that, from the spiking cost of living to issues of stress and burnout. Simply put, the united front of labour that Ford and Lecce created was in a position to demand so much more, and backed down early. 

Having previously slashed their wage demand, OSBCU returns to the bargaining table with a weaker set of deal points than what they initially opened with. What we see is a return to the status-quo, middle-of-the-road negotiations subject to bureaucracy and pervasive incidentalism that marks a majority of public sector labour negotiations. From Ford refusing to hasten Bill 28’s repeal by recalling the legislature to vague “improved offer” language, it’s not difficult to assume both sides will call the eventual solution a victory after meeting somewhere between the government’s insulting offer and OSBCU’s compromised one, before returning to business as usual.

This may be speculative, but strategically, it makes the most sense. Bill 28 and the ensuing labour mobilization left both sides confronting existential crises, with labour’s capacity to bargain put in jeopardy, and the government facing an unprecedented general strike threatening to shut down the province. It makes sense that both sides want to walk away from these threats, but in this equation, labour had considerable leverage, a favourable legal position and an enormous groundswell of public support. 

OSBCU could have used its position to return to its original deal points, and send a message reaching far beyond Bill 28 and cutting to the heart of sweeping inequality and worker injustice that defines Ontario’s current labour relations. At the very least, by staying out on the picket line until Bill 28’s repeal, OBSCU could have declared: “Just once, and never again.” 

By collapsing the picket lines early, OBSCU has effectively handed all reactionary governments in Canada another tool they can use to disenfranchise unions. The use of the notwithstanding clause wasn’t effective this time, but who is to say a similar bill won’t work elsewhere at a more opportune time?

From here on out, it will be completely unsurprising to see use of the notwithstanding clause — and labour fightback to it — become a standard feature of bargaining across the country, with governments relying on attrition until it’s finally implemented successfully. Precedent only has to be set once, and by returning to work early, OBSCU has demonstrated a willingness to ease pressure over continuing to apply it. 

Yeah, it’s a victory, but it’s also a tone-setter and articulates the narrow horizons of Canada’s labour militancy — horizons that must expand as anti-worker legislation continues to be pushed in all its forms nationwide. 

Adam King: In general, two points must be emphasized. First, Bill 28 was horrendously draconian legislation. The full extent of its impact needs to be appreciated before evaluating the union’s decision to end their protest. Again, continuing the strike would have left the bill in place — an extremely risky move. 

Second, ending the protest in no way implies the fight is over. There’s a good contract to win. CUPE members and supporters can still play a role in ensuring that happens. 

Before addressing each point a bit more, I have to say that I think too much is made of the government not reconvening to repeal Bill 28 immediately. I agree that the haste with which the bill was passed stands in sharp contrast to the heel-dragging involved in its repeal. However, the union made sure to get Ford’s commitment in writing and bargaining has already resumed, which is equally as important.  

As well, speculation on the wage settlement is likely premature, but a bit of context is helpful. 

Union wage settlements in Ontario are currently sitting at 2.6 per cent, and only 1.4 per cent in the public sector (much of which is still impacted by Bill 124). Public sector workers in British Columbia recently settled for nearly 12 per cent over three years. All this is to say that OSBCU may well end up with a contract more or less in line with the marginally better settlements we’ve been seeing as of late. While this wouldn’t be a resounding victory, it would be much better than what was on the table before the strike. More importantly, it would be much better than the contract imposed through Bill 28, which — and I can’t stress this enough — was unchallengeable through any legal means. 

Again, the contract is still to be negotiated. 

Abdul claims that the union had “considerable leverage” and “a favourable legal position.” I don’t dispute that the Canadian labour movement came to the aid of CUPE in a remarkable way, but I fail to see how the union was in anything but a horrendous legal position. At best, they might have received a favourable decision from the Ontario Labour Relations Board (OLRB) after the marathon unlawful strike hearing brought by the government over the weekend. On the other hand, we still don’t know the contents of that decision. Had the OLRB found in the government’s favour and deemed the strike illegal, the government would then have been in a position to levy the considerable fines contained in Bill 28 (double the amount for members, and 20 times the amount for unions normally stipulated by the Ontario Labour Relations Act).

Although there’s some precedent for the Board recognizing union members’ right to engage in “political strikes or protest” during work hours (as a Charter free expression right), there was a very real possibility that Chair Brian O’Bryne at the OLRB could have declared CUPE to be engaging in a “mid-contract” and therefore illegal strike. 

But more importantly, in that scenario Bill 28 would still be in force and union members would be on an illegal and indefinite strike. Staying out when you face an imposed contract with no legal recourse is an awful gamble with members’ livelihoods over the next four years. If I were in Laura Walton’s position leading the OSBCU, I don’t think I could subject the membership to that level of risk either. 

Last, conflating the end of this particular work stoppage with demobilization is entirely the wrong approach. Yes, the protests at MPP offices have ceased and members have returned to work, but there’s a struggle ongoing for a good contract. Nothing about the protest ending requires CUPE members or supporters to pack up and go home. While it might not be as sexy as a general strike, continuing to organize support for OSBCU at the table remains as important as it was earlier this week. Rallies and local bargaining support events can still have a huge impact on the outcome of these negotiations. 

Abdul Malik: Between my first response and the riposte, it appears my thoughts about middle-of-the-road and status quo bargaining have been vindicated, as recent reporting claims the Ford government’s improved offer was a paltry 3.5 per cent.

While workers staying and continuing to leave Bill 28 in place would have posed risks, it’s important to reassert that with enough groundswell and unions on picket lines threatening to shut down the province in full, any legal hazards would be largely moot. Moreover, the legal confines of business unionism, and in particular Canada’s adherence to the Rand Formula, exist largely to confine and manage worker dissent. Strict adherence to legal procedure already puts labour in a losing position, as we’ve seen through the decline of union density due to layoffs, cutbacks and government endorsed capital flight for decades.

While you can suggest frustration at the delayed repeal of Bill 28 is an overreaction, it’s also important to look at the idea of momentum here. A delay from people getting off the picket line and back in schools, alongside receding outrage toward the government’s outright animosity for the working class, makes it extremely difficult to whip up new anger or support as the news cycle continues to churn. Delaying Bill 28’s repeal is nothing but a concerted effort to enforce a cooldown period for labour militancy — and labour has played right into the government’s hands. 

The suggestion that labour should settle for little more than the bare minimum, or that, as we’re seeing now, a marginal improvement from what the government put on the table initially is adequate, is laughable. Workers face an extraordinary threat to their ability to afford basic needs. The possibility of a general strike forced the government to flinch with respect to its use of the notwithstanding clause. I maintain that with mass mobilization, vital contract improvements could have been won while concurrently rendering Bill 28’s supposed unchallengeability meaningless. 

OSBCU extracted one concession by ending the strike early (repealing a flagrant violation of our charter rights) but willingly failed to extract the guarantees necessary for its members to see their conditions meaningfully improve. Walton’s calculus around the risks of the strike for the union versus what OSBCU could have achieved for membership was way off. This is particularly frustrating considering CUPE’s economic position with regard to ensuing fines, if they were actually enforced in line with Bill 28’s inane, hard-to-implement language, was actually pretty good. Historical precedent with Canadian wildcat strikes has also demonstrated disciplinary action is often mitigated through mediation, compromise and other legal avenues.

It’s worth mentioning just how rare the degree of mobilization around Bill 28 actually was. From public support to member mobilization and the threat of solidarity strikes, this was a lightning-in-a-bottle opportunity that would otherwise be unfathomable. The sheer momentum behind this strike can’t be overstated, and is possibly a reason the government backed down so quickly. It’s not a stretch to say this was a generational opportunity to exert pressure and win concessions with far-reaching implications for the broader conditions of working people. If power concedes nothing without a demand, OSBCU was in a position to insist on far more than what they settled for by collapsing the picket lines. 

There’s very little optimism to be had around a return to the standard line of labour “activism” and info pickets. These are actions that, in my experience working in labour, have significant impact on smaller worksites, but struggle to produce effective results across huge public sector bargaining tables like OSBCU’s — tables that by Adam’s own evidence, already settle for paltry wage increases. 

Continuing to organize is important, but the massive groundswell of support and mobilization is already dwindling. I believe it’s doubtful we’ll see this degree of action again anytime soon, and we’re all worse off for it.