Category Archives: Strike 2018

Motion of non-confidence by the Faculty of Education Faculty Council Reply

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April 25, 2018

The following Motion of non-confidence in the BOG and call for an independent, external, judicial review of the BOG conduct and interpretation of the York University Act was passed by the Faculty of Education at the Special Meeting of Faculty Council on April 25, 2018.

Votes in favour: 25

Votes against: 3

Votes abstaining: 3

Motion: The Faculty of Education rejects the BOG understanding of their responsibilities and authority to include authority to suspend classes during a disruption, and we reject their interpretation of the respective roles of Senate and the Board of Governors under the York University Act, and further the Faculty of Education rejects the BOG’s assertion that they are fulfilling their fiduciary duties, all of which was asserted in the April 2, 2018 letter from the chair of the BOG to the chair of Senate. We put forth a vote, a statement of non-confidence in the Board of Governors and a call for an independent, external judicial review of the Board’s conduct and interpretation of the York University Act.

Rationale:
1. Respective roles of Senate and the Board of Governors under the York University Act, 1965
Section 12 of The York University Act, 1965 clearly vests responsibility for academic policy of the university exclusively with Senate and gives Senate the authority to enact by-laws, rules and regulations for the conduct of its affairs, regarding academic policy. And further The York University Act clearly states Senate’s jurisdiction over academic policy is wide ranging, general and without limitation: without limiting the generality of the foregoing.
The language of section 12 is unlimited and gives no overriding power to the BOG to override Senate jurisdiction over educational policy. This means that Senate’s authority over academic policy does extend unilaterally and without limitation over academic policy and all matters that pertain to, and impact on, academic policy. There is no requirement or obligation under the York University Act for Senate to consult with the BOG on academic matters, or to seek its agreement on academic policy, although it has the power (not obligation) to consult, if it so wishes.
Unlike some other university Acts in the province and across Canada, the York University Act distinctly protects the Senate’s powers. There is nothing in the York University Act that accords priority, paramountcy or overriding jurisdiction to the decision of the Board.
By stark contrast the powers of the Board of Governors, under the York University Act, are immediately limited by the language under section 10 of the Act which clearly provides in its opening words that Except, as such matters by this Act specifically assigned to Senate, the conduct, management and control of the University and its property, revenues, expenditures, business and affairs are vested in the Board. This means that except for academic policy, which is clearly the exclusive jurisdiction of Senate as stated in section 12 of the Act, the other conduct is within BOG jurisdiction. It also means that when the BOG’s conduct, management and control over revenue have implications for academic policy the Senate has paramountcy. Under the York University Act, the BOG powers are clearly and unequivocally limited by the Senate’s control over academic matters.
Following the reasoning of Justice Sharpe in the case Kulchyski v. Trent University, 2001, These words qualify all of the Board’s powers, including its general governance power and its specific authority over property and expenditures. I agree with the appellants’ submission that by enacting these words, the legislature provided its own solution to potential conflicts between the Board and the Senate. The legislature subtracted authority over educational policy from the Board’s powers and protected Senate’s power over educational policy from encroachment by any power of the Board. Neither the Board’s powers of general governance, nor its power of the purse, allow it to usurp the role of the Senate to control, regulate, and determine the educational policy of the University. (Paragraph 65)
Explicitly, under the York University Act, the limitations of the Board’s powers are precisely in the area assigned to Senate namely, in the area of academic policy. Preserving the academic integrity of York University is central to academic policy. Any disruption (labour or otherwise) that undermines academic integrity is squarely within the purview of Senates authority. Moreover, s. 12 (b) gives Senate the explicit power to determine such things related to standards, courses of study and requirements for graduation. This also speaks to Senate’s power and authority over class suspension or continuation. In the Kulchyski case, Sharpe J. tells us that Administrative interpretation and practice may be used to assist in determining the meaning of legislation and can be an important factor in case of doubt about legislative meaning. (para 91). Senate policy and the university by-laws support this view and past practice of the university during previous strikes also reflect Senate’s clear authority to cancel classes.
Unlike the Board, Senate’s very expertise is in academic matters. The BOG suggestion that they have the expertise, competence or statutory authority to determine academic matters is preposterous. Their conduct violates the York University Act.
2. Fiduciary duties of the Board of Governors
Since the letter suggests that the BOG fiduciary duties somehow give it the power to overstep its role under the York University Act, we would like to address this notion head on. We reject the assertion that the Board is somehow acting in fulfillment of their fiduciary duties in this blatant power grab and aggressive attack on Senate’s exclusive jurisdiction over academic policy. This interpretation is a gross distortion of the BOG fiduciary duties at law. In the university setting the fiduciary duty of care owed by governors and officers of the university is described by the Association of Governing Boards of Universities and Colleges the following way:
The duty of care generally requires officers and governing board members to carry out their responsibilities in good-faith and using that degree of diligence, care and skill which ordinarily prudent person would reasonably exercise under similar circumstances in like positions. Accordingly, a board member must act in a manner that he or she reasonably believes to be in the best interests of the institution.
 
The duty of loyalty means that the board member must not act in their own individual interests, or the interests of another person or organization, but rather must act in the interests of the university and its not- for- profit or charitable purposes. They must act reasonably and in good faith and not out of expedience, avarice or self- interest.[1]
 
In our view, the BOG has certainly been acting out of expedience and quite possibly in bad faith. According to this legal standard, and contrary to the claim in the April 2, 2018 letter, York’s BOG are not fulfilling their fiduciary duties to carry out their responsibilities in good-faith and using that degree of diligence, care and skill which ordinarily prudent person would reasonably exercise under similar circumstances in like positions. In our view, they are not acting prudently or reasonably or with diligence and care. In fact, past practice shows that previous BOG at York, and elsewhere around the country, as well as statute and case law, have all respected Senate’s power over academic policy. This is especially crucial during disputes and disruptions to maintain academic integrity.
Contrary to the assertion in the letter that the majority of governors independent external members who receive no salary or other remuneration who volunteer their time, knowledge and expertise for the benefit of the university and all its stakeholders; current and future students, faculty and staff, alumni, donors, and the public at large, we contend the BOG are, in fact, not acting in the best interests of the university and all its member constituents, nor is the BOG protecting the public interest in its reckless and flawed interpretation of the York University Act. We, as paid employees and academic stewards of this institution are invested in educational governance at York. We are extremely concerned that York’s reputation has been squandered in this strike by the BOG. Chaos and confusion abound as a direct result of the BOG actions in this matter.
This raises issues for us regarding our non-confidence in the BOG’s leadership and, as represented by its Chair. We believe the BOG’s egregious interpretation of theYork University Act compromises their ability to institute any legitimate, internal governance review at York University, and that an external, independent, and judicial review of the BOG’s conduct in this matter is urgently warranted, to ensure that, now and in the future, the respective roles of Board and Senate in a labour disruption are respected and clearly understood by all members of the community, and that any decisions about how to manage the academic implicates of a strike are effectively implemented.
The faculty that have submitted this motion have consulted in-person together at two open invitation meetings to tenure-stream members of the Faculty of Education and on-line numerous times since March 5th, 2018 to prepare this motion.
Appendices:
1. York University Act, 1965

2. Letter from Chair of BOG to Chair of Senate Executive, March 2, 2018

[1] Association of Governing Boards of Universities and Colleges. Governance Brief on Fiduciary Duties. At https://www.agb.org/briefs/fiduciary-duties. Note that the Canadian University Boards Association (CUBA), which York University is a member, directs members to this American association and this document regarding the statement of board duties. Similar statements appear in case law. For example, the fiduciary standard was classically defined by Judge Cardozo in Meinhard and Salmon, 164 N.E. 545 (N.Y.1928) as “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior, the duty of finest loyalty, and, stricter than the morals of the marketplace.”

Statement from the Department of Cinema and Media Arts, AMPD Reply

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April 25, 2018

To: Mr. William Kaplan, Investigator, Ontario Ministry of Labour Industrial Inquiry into the CUPE 3903 Strike at York University.

We, the faculty members of the Department of Cinema and Media Arts, join our colleagues from Glendon, the Department of English and many other colleagues across the university, in expressing our outrage at York administration’s continued refusal to negotiate with CUPE 3903 in good faith. We condemn the administration’s strategy and, with our colleagues, present this vote of non-confidence in President Rhonda Lenton, her senior administrators, and the Board of Governors of York University.

Rationale: For eight weeks, the administration has played a game of hardball, insisting the two sides in the current labour dispute are too far apart to even consider negotiating. This is a misguided strategy as evidenced by the resounding 85% of the union membership of CUPE 3903 that voted ‘no’ in the forced ratification vote, April 9, 2018.

We believe collegial governance is what distinguishes universities as institutions committed to a public good. This core aspect of the university’s mission, however, has been steadily eroded over the past decades as decision making has become centralized and, in particular, Senate authority has been challenged and breached both prior to and during the current labour disruption. Spending on administrator salaries has skyrocketed. Please see Mathew Kurtz’s illuminating article in Excalibur, “The rising cost of high-income administrators at York.”

We believe that much of the erosion of collegial governance stems from a Board of Governors, chaired by Rick Waugh, that is increasingly unrepresentative, undemocratic and whose orientation is blatantly anti-union. Their vision of a corporatized university is not the vision we share. The refusal to negotiate, which we believe is informed by an explicit desire to break the union, is undermining the integrity of our academic offerings, demoralizing faculty, punishing students – including students who, as TAs and GAs, are walking the picket line – and is ruining the reputation of York University.

 

 

 

Motion of non-confidence by the Department of Sociology in LA&PS Reply

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April 25, 2018

The Department of Sociology at LA&PS adopted the following motion of non-confidence in the York University Board of Governors and administration at its meeting on April 25, 2018:

The ongoing strike is doing incalculable damage to the reputation of York University, to our ability to serve our current students and attract students, and to our financial situation. The Department of Sociology in the LA&PS Faculty expresses no confidence in the senior administration led by President Rhonda Lenton and the Board of Governors led by Rick Waugh.

York students do deserve better – That’s why instructors are on strike Reply

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April 30, 2018

By Dana Phillips

It’s the refrain we hear over and over again: “those poor students, caught in the middle of persistent labour disruptions at York university.”  What follows is often, as in Martin Regg Cohn’s recent Toronto Star column, a rebuke of striking union workers for being so darn unreasonable, under the thin guise of balanced journalism.  Sure, goes the argument, teaching staff have legitimate concerns, and precarious work is a problem. But why does CUPE local 3903 insist on being such a troublemaker?

I would be the first to argue that students do deserve better, and I’m confident that my fellow CUPE members, by and large, feel the same way. Many of us are students ourselves; we are also experiencing disruptions to our programs of study, in addition to significant losses in income, and ongoing economic uncertainty. Nearly all of us work closely with students whom we care about and want to see succeed. This is no small part of the reason that we continue to stand up against an administration that is in the business of lining its own coffers at the expense of quality higher education.

Like all unions, CUPE 3903 has its own internal politics, and these have in times past been admittedly problematic (as has York’s own governance). But to suggest that the union’s grievances therefore have no merit is simply fallacious. CUPE 3903 is not an outlier, as Regg Cohn suggests—it is a sector leader.  The hard won rights of CUPE 3903 union members have set a precedent for precarious academic workers across the country at a time when the rapid corporatization of universities should be what has us all alarmed and outraged. This is why arbitration is not a good option for CUPE 3903; you can’t lead the way through a decision-making process that bends towards the status quo.

One of the biggest points of dispute in this strike relates to the job security of Unit 2 contract faculty. York argues that providing opportunities for experienced contract instructors to transition into tenure-track positions (in lieu of the usual open search process, but with the same high bar for granting tenure) threatens standards of teaching excellence for students. And yet, York relies on contract instructors in short-term, low-paid positions to teach more than a third of its classes (more than half if you count teaching assistants). If York is truly concerned about teaching excellence, one wonders why the administration is currently fighting to have more courses taught by full-time graduate students from Unit 1, who are generally less qualified than the Unit 2 contract instructors they would be replacing.  There is nothing good for students about having “professors” who are overworked, underpaid, and unsure of where their next paycheck is coming from.

CUPE 3903’s proposals for Units 1 and 3, meanwhile, focus on ensuring accessible and equitable access to graduate education for future students—i.e. current undergraduates.  While CUPE looks towards the future, however, York and much of the media remain fixated on the strike’s most immediate impacts, thereby losing sight of the deeper issues threatening public education for years to come.

One of the problems with opinions like those of Regg Cohn is that they assume that striking workers are primarily to blame for what is happening to students at York. This is nothing new; it comes up all the time on the picket lines.  Perhaps it should come as no surprise that it is easiest to blame those who are out in the cold day after day, physically obstructing the way to classes, degrees—business as usual.  It seems as though these are the people that chose to mess everything up for everybody.

What, though, about the choice of York administrators to refuse to come to the bargaining table for weeks on end, while CUPE remains ready and willing to negotiate? What about the economic and educational systems that place highly educated and skilled people—the people we hope our students will become—in the position of struggling to make ends meet? The ability of these causes to remain invisible is what gives them their power and privilege.

The university and the public are rightfully concerned about the well-being of York’s undergraduate students at this difficult time. Unfortunately, they seem much less concerned about the well-being of those who provide the bulk of those students’ education, and who, in many ways, reflect those students’ own precarious future.

Motion of non-confidence by the Science & Technology Studies Graduate Students Association Reply

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The following motion was passed on April 21, 2018. 

Motion:

The Science & Technology Studies Graduate Students Association expresses non-confidence in the senior administration of York University led by President Rhonda Lenton and in the Board of Governors led by Rick Waugh.

Rationale:

With the strike entering its eighth week, York’s administration continues to refuse to bargain with CUPE 3903 to resolve outstanding issues in a timely fashion. The approach of the Senate Executive Committee to remediation while the strike is ongoing has created confusion and chaos within York’s community, intensifying the anxiety and stress of students, faculty and staff, as well as undermining the academic integrity of courses and therefore York’s reputation.

York’s President and Board of Governors, with the support of Senate Executive, have undermined the historic interpretation and application of The York University Act, 1965, thereby undermining collegial governance at York. Given these considerations, the Science & Technology Studies Graduate Students Association can no longer express confidence in the leadership of President Rhonda Lenton or Chair of the Board of Governors Rick Waugh.

Furthermore
The Science & Technology Studies Graduate Students Association calls upon other organizations, associations, councils, and bodies within the greater York University community to pass similar motions of non-confidence in the senior administration and condemn ongoing attempts to undermine collegial governance at York University.

Motion of non-confidence by the Glendon Faculty Council Reply

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April 20, 2018

Motion

Glendon Faculty Council expresses non-confidence in the senior administration of York University led by President Rhonda Lenton and in the Board of Governors led by Rick Waugh

Rationale

With the strike in its sixth week, York’s administration continues to refuse to bargain with CUPE 3903 to resolve outstanding issues in a timely fashion. The approach of the Senate Executive Committee to remediation while the strike is ongoing has created confusion and chaos within York’s community, intensifying the anxiety and stress of students, faculty and staff, as well as undermining the academic integrity of courses and therefore York’s reputation.

York’s President and Board of Governors, with the support of Senate Executive, have undermined the historic interpretation and application of the York Act, thereby undermining collegial governance at York. Given these considerations, Glendon Faculty Council can no longer express confidence in the leadership of President Rhonda Lenton or in the Chair of the Board of Governors Rick Waugh.

Motion of non-confidence by the Department of English in LA&PS Reply

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April 18, 2018

The Department of English at LA&PS adopted the following motion of non-confidence in the York University Board of Governors and administration at its departmental meeting on April 18, 2018:

Given that the Board of Governors and the York University administration are completely disconnected from the York University community and have demonstrated their determined refusal to establish respectful dialogue with all university stakeholders, it is moved that the Department vote its non-confidence in the York University Board of Governors and administration.

 

Motion by the Department of English at LA&PS Reply

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April 18, 2018

The Department of English at LA&PS adopted the following motion of non-confidence in the York University Board of Governors and administration at its departmental meeting on April 18, 2018:

Given that the Board of Governors and the York University administration are completely disconnected from the York University community and have demonstrated their determined refusal to establish respectful dialogue with all university stakeholders, it is moved that the Department vote its non-confidence in the York University Board of Governors and administration.

Statement by Justin Podur, YUFA Chief Negotiator 2

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April 18, 2018

York administration’s latest communication, “Two days of mediation produce no settlement”, sets up the provincial Industrial Inquiry Commission to fail.

The second paragraph of the communique says: “While agreement was reached on two issues – lactation and breast-feeding space and professional expense reimbursement – CUPE 3903’s other proposals continue to be well outside the range of anything the university can ever agree to.” (emphasis mine).

That is an extraordinary statement for an employer to make publicly during bargaining. That it is being made in the middle of a mediation attempt brokered by the provincial government makes it astounding. That it is being made in week seven of a strike makes it mind-boggling.

This particular strike has been defined by a very consistent and specific communicative approach by the employer. Before the strike even began, the administration communicated that it wanted CUPE 3903 to go to binding arbitration. In every single communication, several each week for the past seven weeks, the administration has repeated that message – arbitration, arbitration, arbitration, arbitration. The specific issues that separate CUPE 3903 and the administration are less frequently, and less consistently repeated than that message – that this should not be resolved at the bargaining table but at arbitration.

Since the administration returned very briefly to the bargaining table on March 22 only to walk away again and return to the “arbitration” line, it has made several other attempts to avoid bargaining. The supervised vote, announced on March 27th and resolved on April 9th, entailed nearly two weeks without bargaining. When CUPE 3903’s members rejected the employer’s final offer in the supervised vote, the administration admonished the membership, said it was “disappointed” in the vote, and suggested a new approach – arbitration. There is very little explanation behind this mantra. York’s president said in a radio interview that fundamental principles separate CUPE 3903 and the employer – these principles were the principle of open hiring and of students being able to receive funding without a work requirement. These principles have been bridged in past agreements with CUPE 3903. They have been bridged in other collective agreements. There are ways to fulfill CUPE’s concerns about job security and the benefits of union membership for MA students without sacrificing the employer’s stated principles – but only through negotiation.

If the administration had an interest in bargaining, they would have countered CUPE 3903’s proposals. On March 22nd, CUPE reduced their demands. The administration, instead of countering, publicly said that CUPE 3903’s demands were unrealistic. After the supervised vote, the administration reiterated that CUPE 3903’s demands were unrealistic. Over the weekend, meeting with the provincial investigator, CUPE 3903 again reduced their demands. The administration publicly repeated that CUPE 3903’s demands were well outside the range of anything the university can ever agree to. On three occasions, York could have countered and did not. That is contrary to the conventions of bargaining, as CUPE 3903 said in one of their communications. Submitting successive, reduced proposals is not good bargaining practice – it is called “bargaining against yourself”, and it is to be avoided. York has asked CUPE 3903 on three occasions to bargain against itself – or accept arbitration.

The administration’s approach is not explicable in terms of differences of principles. What can explain it is if avoiding bargaining is the principle. Union bargaining teams receive their mandates from their members. Employer bargaining teams receive mandates as well. Trying to reverse-engineer the employer’s mandate based on their behaviour, it seems to me that they care less about any particular proposal and more about avoiding the table altogether and settling any disputes through arbitration. Long-term, if this strike ends with CUPE 3903 surrendering – if enough violence occurs against picketers, if the demonization of union members succeeds, if they become weary enough to give up with no end in sight (and the administration’s communique explicitly states that it has every intention of letting the strike drag on throughout the summer) – then it will be counted as a major victory for the employer, regardless of the costs to York’s reputation and enrolments. The summer terms will drop one by one, fall enrolments will fall, and the administration hopes, CUPE 3903 will break.

The notion is (perhaps) that reputation and enrolment can be rebuilt, but breaking CUPE 3903 on campus will be a lasting achievement. But the truth is that a union can be rebuilt too, even after it is broken, though lasting damage can be done to morale and community through a forever strike.

Justin Podur, Chief Negotiator, YUFA

Statement from CUPE 3903 Member, Devin Clancy, at Senate Meeting Reply

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April 12, 2018

I’m Devin Clancy, a student, teaching assistant, and senate representative for CUPE 3903.

First, I’d just like to express my gratitude to the Senate Executive for booking a room that can accommodate the public. It’s too bad that it took a student reclamation of the senate chambers in order for these meetings to even be open and accessible, but I’m nonetheless glad I don’t have to fight off a headlock from security to be here today.

I have a question for President Lenton and the executive, but it requires a little bit of context so bear with me.

While Rhonda has been expensing luxury headphones and first class accommodations, this institution has been under attack, an attack that is painted by the executive as “business as usual.”

But what is “business as usual” for York University?

Recent history suggests that it means cutting 800 GA jobs without warning, and unilaterally tearing $5,400 of TA funding out of our protected Collective Agreement.

It means offering an incoming MA student a unionized job with health benefits, only to deny it once they’ve accepted. It means this student is forced to drop out because of uncovered health costs, and it means that FGS now demands this student payback their fellowship.

It means denying students’ summer pay.

It means empowering a Bargaining Team who doesn’t understand that 2 conversions is less than 8.

It means a final offer that is full of concessions.

It means systematically failing to meet with our union’s health and safety committee and an accessibility office at Glendon that isn’t wheelchair accessible.

It means taking four weeks to respond to complaints of asbestos in our workplace.

It means failing to notify the community of bomb threats and hate graffiti.

It means inviting a dozen toronto police onto campus to violently detain someone using rubber bullets.

It means kicking someone out of Ross in the dead of night in winter for trying to sleep in a sheltered space.

It means a library roof that has leaked for years, a mouse and cockroach problem in Vari Hall, and an unpaid water bill.

It means an administration that spends hundreds of thousands on anything but bargaining in good faith with CUPE 3903.

It means meeting with the crisis management PR firm Navigator to mislead the public and tarnish CUPE 3903’s reputation.

It means purchasing radio ads that misrepresent our union’s bargaining positions and it means buying the back page of Excalibur for months.

It means charging CUPE3903.com to the Faculty of Graduate Studies, a website currently under investigation by the ministry of labour for redirecting web traffic to York’s own labour webpage.

It means spending thousands of dollars on private security to surveil and intimidate striking workers, and students that have reclaimed the senate. So much so, that the Canadian Civil Liberties Association reached out to President Lenton, imploring her to end these tactics immediately.

It means trying to ban metal gates and firebarrels on the picket lines, instruments that are essential to ensuring the safety of our members as they exercise their legal right to strike.

It means reinterpreting the York Act to disempower collegial governing bodies, and it means transforming the Senate Executive into a hollow mouthpiece for an unrepresentative corporate Board of Governors.

It means hiring Hicks Morley, a union busting law firm that gives lectures to employers on how to avoid liability in cases of critical injury or death of workers.

It means forcing workers out in the cold on strike for 40 days. And it means only coming back to the bargaining table for 1 day, only to walk away and force a bogus ratification vote.

And it means providing the ministry of labour with fake employee emails and incomplete membership rolls.

To be honest, I didn’t even know a president could be so corrupt and incompetent.

But let me tell you, workers are fed up with a profit driven corporation that uses “academic integrity” as a rhetorical shield while deepening academic precarity and exploitation.

And we’re fed up with a University that appropriates the language of social justice as a marketing tool, only to entrench unjust working conditions on 60% of the educational workers at York.

This union destroyed your bad offer, and voted 85% to reject the administration’s attempt to impose neoliberal austerity measures on our membership.

And now the Liberal government has abandoned your desire to impose back-to-work legislation.

You’ve lost Rhonda.

You’ve lost the strike, you’ve lost the confidence of the community, and you’ve lost the Senate, literally.

Don’t be foolish enough to lose the summer semester too.

So I ask: President Lenton, when will York University return to the bargaining table?