When CUPE 2099 members went into bargaining with the City of Mount Pearl earlier this year, the union was optimistic. Relations between workers and management were better than they had been in a long time, and everyone was looking forward to the most “normal” summer since the start of the Covid pandemic.
The optimism didn’t last long. The city’s unionized employees have been on strike since July 7, and the strike is now entering its eighth week. Last week the city tabled what it called a “final offer.” The next day union members burned copies of it on the picket line.
What happened? The Independent reached out to unionized employees, union reps, the City of Mount Pearl, and labour researchers to look more closely at the issues driving the ongoing labour dispute.
“I felt so optimistic”
Ken Turner has seen his share of conflict zones. A former marine engineer with the Canadian Navy, he’s been shipped all over the world, from the Pacific to the Middle East. He looks back on his time in the navy fondly. He was on the maiden voyage of the HMCS Ottawa; he’s been on missions to intercept Al Qaeda operatives and supply lines in the Strait of Hormuz.
Today he’s embroiled in conflict of a different sort. He’s president of CUPE 2099, whose 200 members have been on strike against the City of Mount Pearl since early July.
Turner’s been an employee of the city for twelve years. After retiring from a 22-year career in the Canadian Forces, he worked as a maintenance technician at Scotsburn Dairy factory before applying for a job at the City of Mount Pearl. There he works as a facilities maintenance technician.
In the four decades since its employees unionized, the City of Mount Pearl has initiated three lockouts against the union (in 1983, 1996, and 2014). Turner, who’s been president of the local since 2016, was hopeful this round of bargaining would be different. He and other employees had worked hard over the previous eighteen months to improve relations with management through a joint workplace engagement committee. He gives credit to the city for its Covid response, which he says actually helped bring both sides closer together. The city maintained open lines of communication with workers, he says, and did its best to redeploy employees affected by Covid closures, keeping many of them employed and reducing layoffs. So when bargaining began in early March, he was hopeful.
“We went into bargaining with a very optimistic attitude,” he said. “We were expecting there would be some minor language changes for clarification… but immediately in early March we realized that the city actually wanted much more. It was a lot more than language changes. There were quite a lot of concessions on the table, and so we knew that we were going to be in for a difficult round of bargaining.”
Turner has served on the bargaining committee before, and says this round feels different.
“2018 was a tough round of bargaining, but it was fair-minded and a room full of mutual respect. However that has not been the case this time around… we’ve never seen any bargaining that has been as bad as what this one has been, and what we would see as a lack of respect at the bargaining table. So it’s been tough.”
He realized this round would be different, he says, when he learned that Mount Pearl was sending in a lawyer as part of their bargaining team. He says it’s the first time the city has brought a lawyer into bargaining in the union’s 45-year existence.
Do lawyers help or hinder collective bargaining?
This year Mount Pearl has contracted the services of law firm McInnes Cooper to assist with bargaining. That’s the firm which advised Choices For Youth in its recent bargaining, which resulted in a very public five-week strike earlier this year.
Canada’s labour relations system was not designed to require lawyers—the premise of the system is that managers and employees sit down together to negotiate conditions in their workplace. But there is a growing tendency among some employers to bring lawyers into that process—an approach which has generated some controversy.
Dr. Larry Savage is a professor of labour studies at Brock University in Ontario. He says that while there are some circumstances where a lawyer can aid the bargaining process, those are “the exception rather than the rule.”
“More often than not employer-side lawyers frustrate the bargaining process,” he said. “They have plenty of technical and soft skills, but because they know very little about how the workplace actually functions, a lawyer’s value in bargaining—in my view—is severely limited.”
The value of lawyers, he says, can be when both sides are so personally hostile that an outside voice is needed.
“But I think that many times lawyers are a fish out of water in collective bargaining, and a very expensive one at that,” Savage explained. “With lawyers, so much of the bargaining process is taken up with the lawyer desperately trying to understand what the union and the management is talking about in a very particular context of a particular workplace, in a particular culture, and a way of doing things that isn’t immediately obvious from someone just sitting there and reading the text of a collective agreement.”
The use of lawyers is on the rise among public sector employers, says Savage. Why?
“I think it may be seen as more politically expedient to farm out your dirty work, particularly in the public sector. It allows elected officials to plead plausible deniability when things go sideways… there’s this deference to the idea that a lawyer can magically get you the settlement you want, but it’s misreading the power dynamic in collective bargaining.”
Mount Pearl mayor Dave Aker defended the city’s decision to hire a lawyer for negotiations.
“At the end of the day you’re always consulting lawyers because what you’re trying to do is craft together a legal agreement from an HR perspective,” he told The Independent. “It’s not unheard of to get lawyers involved in contract negotiations. We don’t interfere with the people [the union] picks for their negotiating team.”
While unions often bring staff reps into bargaining with them, union staff reps are typically drawn from the union membership itself, and generally do not have legal expertise. In the case of CUPE 2099, the staff rep assisting with bargaining is a former lifeguard instructor with the city. Nicole Dunphy also worked as a recreation and youth services leader before getting hired by CUPE as a staff rep in 2021.
“I think in public sector labour relations we are seeing increased use of lawyers on the employer side,” said Savage. “I want to be clear about that. In unions it’s very rare that a union hires a lawyer to conduct its negotiations.
“The vast majority of union reps are not lawyers. The movement has been able to negotiate contracts over all of these decades. It’s a bit odd that human resource departments, which are getting bigger, (…) want to farm these things out to lawyers.”
That’s not to say lawyers have never played a role—both sides have always consulted with lawyers if they required clarification on particular legal points, or to work out specific language. But having lawyers involved directly in bargaining is a different matter.
Mary Shortall is President of the NL Federation of Labour, and she’s also concerned by the growing practice of employers hiring lawyers to do their bargaining for them.
“If you look at the recent history of labour disputes in the province, it appears that the most prolonged ones and the most aggressive ones, the hardest ones to settle, are the ones that [involve lawyers],” she said. “These lawyers are paid by the hour, it becomes adversarial during the bargaining process… what it also does is it drags out bargaining. You don’t really hear tell of these bigwig lawyers being brought in and getting a decent settlement.”
Part of the problem, says Shortall, is that when managers negotiate, they know that they have to work with the employees at the end of the day, and this helps maintain an atmosphere of civility and respect. Lawyers who are hired just to do bargaining are able to walk away when it’s over, and this can sometimes leave a fractured and divided workplace.
“The employers are left to clean up the mess,” Shortall added. “It becomes entirely litigious. It removes the employer totally from the process. These lawyers don’t have to work with people at the end of the day.”
Mayor Aker told The Independent that the city would provide a rough estimate of the costs incurred thus far by using McInnes Cooper’s services for bargaining. On August 31, a spokesperson for the city said it has paid approximately $60,000 for legal services related to collective bargaining to date.
One of the contentious issues during early bargaining was the city’s proposal to introduce a system of two-tiered benefits, in which newer employees would have fewer benefits—particularly sick leave—than current employees.
“It doesn’t make sense that a local council—right after the pandemic and Snowmageddon and everything else that public sector workers have had to go through—that an employer would actually sit down and bargain two-tier benefits,” said Shortall. “It just doesn’t make sense to begin with.”
“It’s not uncommon now to see [two-tier benefits] in the public sector, in recent history,” countered Aker. “But we provided the union in the negotiations a package of proposals which we were flexible on.”
The union firmly opposed any two-tier benefit structure and says the city has largely withdrawn those proposals.
But an outstanding issue is the city’s demand for concessions on sick leave. Presently unionized employees can claim up to 21 days of sick leave. That allotment has existed for close to forty years, says Turner—it was 24 days prior to the 1983 lockout. The union can’t understand why the city would seek to reduce that now, especially with an ongoing pandemic.
“Sick leave costs money,” said Aker. “When we hire a snowclearing crew for the winter, in terms of the numbers required, we’ll add another ten to fifteen percent to take into account that from time to time people will be off… So sick leave is real from a financial point of view, and that was our motivation. We thought it would be a good way of joining with the way other public sector entities have solved the issue to reduce their costs.”
An additional factor compounding the issue of sick leave is that the city’s unionized employees don’t have a typical severance package. Severance—an acknowledgement of years worked that is normally paid out at the end of an employment relationship—usually accrues in the form of a designated number of days for each year worked. Mount Pearl doesn’t have that. Instead, city employees are allowed to accumulate unused sick leave. At the end of their employment, they can then redeem any unused sick days. This is loosely referred to by both parties as ‘severance’, although it’s not severance in the true sense of the term. But it underscores why employees are so determined to protect their current benefit levels.
“It’s not a true severance,” said Turner. “If you get sick, if you are inflicted with a disease such as cancer or you have a heart attack or you need to be off for any amount of time, you won’t have any sick leave left. So you could retire—and we have had members retire—with nothing. So we don’t have a true severance. And the city tried to take even that away this time.”
The city has argued non-unionized employees only have 18 days of sick leave, and is hoping to reduce unionized workers’ sick leave to that level. Mayor Aker says bargaining is about compromises.
“Sometimes the best union agreements are not the ones that people can stomach, they’re the ones that people can’t stomach. There’s not going to be something in this agreement for everybody. Nobody’s going to be perfectly happy with it, and sometimes those are the best agreements moving forward.”
Safety violations—or anti-union retaliation?
Another outstanding issue—the biggest one, according to both sides—is the city’s proposed ‘return-to-work’ protocol. After a strike or lockout, it’s normal for both sides to agree to a protocol around how the return-to-work process will happen. One of the sticking points, according to CUPE, is that the city is seeking to discipline some employees over their behaviour during the strike.
Retaliatory measures are highly unusual and a violation of the constitutionally protected right to strike, says CUPE. But they say the city refuses to agree to a protocol that would ensure no retaliation against employees for behaviour during the strike. They’re worried that without strong protective language, additional employees could also be targeted with disciplinary action for strike activities after they go back to work.
Some of this stems from a picketing strategy CUPE 2099 tried out early on in the strike, during which they slowed down garbage collection. Because unionized employees are on strike, city services like garbage collection are being performed by managers. On the morning of July 21, the union picketed along the garbage pickup route in the lower Park Avenue area.
However, after about twenty minutes of picketing the union called off the strategy, says Turner. He says he was concerned that the inexperience of managers driving the garbage trucks could lead to someone being injured. He says he even informed the managers they were going to stop picketing the garbage route.
About a week later, the union says a dozen employees who participated in that picketing activity were told they would face disciplinary action over it.
“It was a legal part of picketing,” says Turner. “A totally legal part of picketing. So it seems a little retaliatory to me. Our members are not going to stand for that. Now’s the time to start building bridges, not driving wedges.”
“They do continue to be employees, and normally if there’s a safety violation you would issue discipline with regards to that,” Aker told The Independent. “They do remain employees of the city, and frankly that’s for their own protection.”
CUPE feels there’s a double standard involved here. Turner says union members were warned by the city that their benefits—drug plans, medical benefits—would be cut off if they went on strike, as they would not be working for the city (CUPE is presently providing those benefits for striking workers).
“So what is it, are we employees or we are not employees?” said Turner. “We’re not employees if it comes to benefits and compensation, but when it comes to discipline we are employees again.”
Aker acknowledged it was a tricky issue.
“Yeah, you can’t have it both ways,” he said. “Obviously we have to cut off their financial benefits because they’re not doing any services for the city. We respect the picket line… You don’t have to go all out in terms of your behaviour, because if you’re standing on a picket line I think you’ve made your point that day. There doesn’t have to be any unsafe activity.”
“Picketing is inherently unsafe activity,” countered Turner.
Shortall is also perplexed as to why the city has made such a big issue of this.
“These things around disciplinary action and stuff, I mean they’re unheard of normally,” she said. “Every now and then employers will try and say that about something that happens on the line, but to actually make it a make or break for a settlement around disciplinary action is unheard of.”
City nixed domestic violence leave proposals
One of the union’s big disappointments is that the city took a firm stand against union proposals around domestic violence. In 2018, the province brought in legislation requiring employers to provide a minimum of three days paid leave and up to seven days unpaid leave for employees dealing with domestic violence (for instance, seeking counseling or medical attention, finding new accommodations or dealing with legal or police matters). The province’s legislation sets the legal minimum; some employers provide additional domestic violence supports. The union proposed 10 days paid leave and up to six months unpaid leave. The city refused. Aker said they did not want to depart from the existing statutory requirements.
“See you have to give it by statute at the end of the day,” said Aker. “That’s become part of the workplace laws or rules so to speak.”
Savage disagrees with that framing, and points out that statutory leave requirements are a minimum—many workplaces offer more.
“It’s not a standard, it’s a floor,” said Savage. “So that whole frame I think is incorrect. Government is not setting the standard, they’re setting the floor. They’re setting a bare minimum of what employers must do. People don’t join unions to get the bare minimum. They join unions because they’re looking to improve their terms and conditions of work, above the bare minimum.”
Aker says employees can deal with domestic violence-related issues through their regular leave.
“They get personal days, that can cover it off,” he said. “We’ll always work with any employee who has had that. But the difference is we wanted a more all-encompassing leave qualification including gendered violence… We wanted to broaden it to make sure that not only was gendered violence dealt with but any other types of leaves that might be necessary.”
The city is offering employees a $1000 signing bonus, but Turner says it’s not the generous gesture it sounds like. After mandatory deductions it’ll be much less, he says. Employees have been on strike for eight weeks, earning $300 a week in strike pay. Many of them are living on their credit cards, he says. When they go back to work, they could have to work through a full pay cycle before they get their first regular paycheque. He says that the signing bonus will just help employees float along until their first paycheque and begin to recover financially from strike debts. He notes that the City of St. John’s also gave its employees a signing bonus, but did so without triggering a strike. That, he says, reflects a bonus in the true sense of the word.
“Stronger than ever”
Sherry Fitzpatrick’s roots in Mount Pearl run deep. Her grandparents were among the city’s first residents, and built a home along the Waterford River nearly sixty years ago. She went to work for the city immediately upon graduating college in 1994. She’s worked there her entire life, moving through various administrative positions. For the past twelve years she’s worked in payroll. She normally loves her job but says she’s willing to stay out as long as it takes to avoid concessions.
“After eight weeks the morale amongst the members is higher or just as high as it was on day one,” she says. “They’d stay out another eight weeks if that’s what it takes to do what’s fair and just. They’re more united than ever.”
But she admits it’s been tough.
“This strike has probably been the worst that I’ve gone through in any labour disruption that I’ve seen. And it’s been mentally draining.”
Members of the local have had very little time to spend with their families this summer, she observes. They have to do picket duty in order to receive strike pay, and many have picked up additional part-time or even full-time jobs to try to make ends meet. Strike pay, which is provided by CUPE, is only $300 a week (it goes up to $350 in week eight of a strike).
Fitzpatrick’s husband works, but they need both incomes to cover their bills. The family managed to get two months’ worth of mortgage payments deferred by their bank, but the bank says no more deferrals will be permitted.
“So I have to figure out a way to pay that bill, and I don’t know how I’m going to do it,” she says. Other members were denied mortgage deferrals right from the start, she says. She has two children, and with school starting next week hasn’t been able to afford new sneakers or clothes for them.
But there has been support from the community. The St. John’s Firefighters’ Association donated $1000 to the local for school supplies for the children of striking members, and CUPE Local 589 at the City of St. John’s donated another $1000. Smaller locals have also donated money. Turner says one of their own members—a young man with no children of his own—recently donated his entire week’s strike pay to the school supply fund.
Fitzpatrick says she appreciates the community support, but is also impressed by the solidarity of her fellow workers.
“The amount of younger employees—16-, 17-year old kids that are still coming to the picket line to do their picket duty—it’s unreal,” she said. “I’m very proud of our younger generation of union members. Through two lockouts and now a strike, it’s the first time I’ve seen so much support by younger people, and younger people getting involved.”
“It’s not about the money,” she added. “It’s not even about the sick leave any more. People are physically exhausted, and very stressed from the struggle with finances, with trying to get our kids back to school. They’re angry. But they’re proud too. They’re very proud because they assisted in making an impact for younger employees coming behind them.”
One moment stands out in particular for her. On July 22 the city issued a statement accusing striking workers of “bullying”. The accusation hit Fitzpatrick hard—she’s had to deal with bullying in her own life, and was deeply upset.
“So the next day we had all of our young workers—women—come to the front of the picket line. I had my anti-bullying shirt on, we had placards saying ‘I am not a bully’, and everybody stood arm in arm while I spoke across the street to [the employer] and I had a meltdown. In front of everyone. And I got to say, it was the most heartwarming thing I’ve ever seen, to see everybody come to me, hug me, keep me stable. Because it really affected me, and it affected others. And just to see the solidarity and people behind me and supporting me when I spoke up in front of my managers was awesome. And there’s been other times that we just stood arm in arm, a hundred people, we were arm in arm across the street from them and we would not let go, to show that we were solid, we were united, and we were not giving up.”
While there have been outspoken critics of the strike on social media, support for the union has also been strong. On the day we stopped by to grab some photos of the picket line, we paused to watch members helping an elderly couple into their car. Mike McCarthy is 71 next week, and his wife Rose is 79. They aren’t members of the union, but they’ve come to spend time on the picket line every day since the strike began. On the day we visited, they’d brought pizzas for the strikers. Mike is a retired NAPE member.
“I’m supporting strikers,” he said. “They’re fighting for their rights. I like taking care of them. I’ve been on a couple of strikes so I know what it’s like to be on a strike. There’s nothing fun about it.”
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