government’s collective bargaining expert

The most charitable way I can describe the government’s expert testimony on collective bargaining was that there wasn’t any. It was so bad, I won’t use his name.

This was the worst expert witness I have ever seen. It was a textbook demonstration of what not to do, be, or say.

You are not supposed to argue the lawyer’s case for them – he did, over and over. You are not supposed to argue at all – oh boy, on cross-examination that’s all he did. You are not supposed to opine on matters you know nothing about – but he’s here to tell us how collective bargaining works, even though he has never sat at a bargaining table.

My notes are filled with various written versions of shaking my head and rolling my eyes. Instead of sharing all that with you and why, here’s a short peek.

Direct Examination – by alan ladyka

The direct examination focused on a serious of propositions (arguments, not facts) that:

  1. Changing the scope of bargaining doesn’t affect the bargaining process;
  2. Changing the scope of bargaining doesn’t affect bargaining power;
  3. Changing the scope of bargaining doesn’t affect the ability to make trade-offs.

My response to all that was scoff, scoff, scoff. Of course all of this changes once you start messing around with what’s on the table. Anyone who has ever negotiated anything knows that:

Well, you’re buying a house, and the government has fixed the price, but, you can still negotiate over important stuff, like the closing date, and whether they’ll leave the washing machine.

There’s no effect on your bargaining power or trade-offs is there? And you are still bargaining are you not?

This is all in aide of the government’s position that even though the Public Services Sustainability Act takes wages and all monetary matters off the table, there can still be substantial bargaining because the unions can still negotiate with what’s left. Presumably, this is so that they can then argue that there is not substantial interference in collective bargaining as long you can still substantially bargain, the term Brian Ellis used in his discussions with Sheila Gordon.

This explains all of Leonoff’s careful attempts on cross-examination to highlight all the many things the unions could still bargain about even with the PSSA. And those things are important aren’t they? Yes, says the government’s expert, they can be. True, but it is not about whether these things are important or not in themselves, but rather their relative importance to other matters not on the table, i.e. wages, which are so very often, the number one issue by far.

It was all fairly weak and lacking in factual and logical support. But it got worse on cross-examination.

CROSS-EXAMINATION – BY shannon carson

Shannon the Hammer began the cross-examination by pounding the government’s expert witness with excerpts from a number of labour cases where his expert testimony had been rejected. Ooh, this was painful:

The expert was making legal policy arguments, philosophical statements that cannot be measured … the logic was not compelling.

The expert evidence demonstrated a weakness in his analysis and understanding of the principles.

And they said he was wrong here, and he was wrong there, and so on and so on.

But things really got crazy when Carson started confronting the expert with his own words in textbooks and articles that he had written. These words, in various and voluminous ways, contradicted the arguments that he was trying to make in this case. And it was not at all surprising, since when he wrote those words, he did so in accordance with the well-established principles of how collective bargaining is generally understood.

Instead of simply biting whatever bullet his own words created, the witness anticipated every legal use that might be made from them, and tried to argue his way out of them. Not only should you, as an expert witness, never do this, the arguments he was making weren’t very good. Furthermore, as it went on and on, the arguments got longer, and faster, and more and more incomprehensible.

This is what the experience was like:

Shannon: Asks some factual question.

Response: But I didn’t say that. Even if you take wages off the table the bargaining process still stays the same. 

Blah, blah, repeast same nonsene, I never said anything that might help Labour Suspendisse

euismod eros vel urna bibendum gravida. Phasellus et metus nec dui ornare molestie

Holy Crapola what a ridiculous argument.

Shannon: So, you wrote in your textbook that free collective bargaining is better than legislated restraints …

Response: But I didn’t actually say that, or, I actually didn’t mean that, I meant legislation  with some qualification … 

vestibulum velit. Suspendisse euismod eros vel urna bibendum gravida. 

ornare molestie. In consequat urna sed tincidunt euismod. Praesent non pharetra arcu, at tincidunt sapien. 

Shut-up, Shut-up. When the answer to the question is yes, say yes and SHUT-UP!

Shannon: According to this textbook chapter you wrote, bargaining power is determined by a number of things, including the legal environment, i.e. legislation …

Response: I was talking about “broad baskets” of bargaining power, blah, blah, blah, blah, waffle, waffle, …

Lorem ipso doler, nunc et vestibulum velit.

Suspendisse euismod eros vel urna bibendum gravida.

Phasellus et metus nec dui ornare molestieornare molestie. In consequat urna sed tincidunt euismod. Praesent non pharetra arcu, at tincidunt sapien. Nullam lobortis ultricies bibendum. Duis elit leo, porta vel nisl in, 

I want to squash him.

I imagine that Carson felt like squashing him too, because this kind of unending string of unintellible utterings is really frustrating. You are never sure whether to cut him off or let him go on and dig himself ever deeper into humiliation. Shannon did the latter for the most part. It was probably all she could do anyway.

By the end of the day, none of us were writing anything he said down, we couldn’t. We all just looked at him at waited until the verbal spew stopped. But it wasn’t finished so we all had to go home to wait for the tiresome finish the next day.

I arrived the next morning to find that I was blocked out of my regular seat, the one with an unobstructed line of sight to the witness. A group of three women from somewhere in government sat on the end of my usual row. (I sat behind Shannon instead.) It wouldn’t surprise me if that was a deliberate play on behalf of the government so that their so-called expert witness couldn’t see me laughing at what he had to say.

It was a waste of time anyway. The day was more of the same and the damage already done.

LET’S TALK TURKEY

Let’s take a closer look at at the government’s argument. They say that changing the scope of bargaining doesn’t affect the bargaining process. Therefore, taking wages and other monetary elements off the table doesn’t change the fact that you can still bargain.

In terms of the language of the Supreme Court of Canada in B.C. Health Services, their argument translates to that it isn’t substantial interference if you can still substantially bargain (with what’s left over).

This equivalent to saying – changing what you put on the table at Christmas dinner doesn’t change the process of having Christmas dinner.

Or in other words, even if you take away the turkey and stuffing, it’s still Christmas dinner because you can still eat.

Dad has decreed: There shall not be turkey (and therefore no stuffing) at this year’s Christmas Dinner. 

Why? He has been doing some research and discovered how stupid turkeys are, and so he has decided that he is ideologically opposed to allowing anyone in his family to eat such idiotic animals.

His kids and grandchildren protest – it cannot be Christmas dinner if we don’t have turkey.

Not so, says Dad:

– It’s still a dinner, and it is taking place on Christmas Day, right?

– You can put food on your plate and cut it into pieces can’t you? Isn’t that part of the process of eating?

– You can put food in your mouth can’t you? That’s caloric intake, isn’t it? That’s eating, right?

– There’s still turnips and parsnips, that’s food. (I hate them.) Well, put gravy on them (I’m allergic.)

– But potatoes, look all those potatoes, you can heap your plate up with them, and I know you really like them.

Yes, Dad, I do like potatoes, but not enough to make up for the fact that there won’t be any turkey.

Sorry Dad, if Mom isn’t making turkey and stuffing, then it isn’t Christmas Dinner, and so me and my brothers and all of the grandchildren are going out for gluten-free pizza on December 25, and we’re taking your credit card because you are going to pay.

one last SHAKE OF THE HEAD

Please don’t try to tell me that taking something as fundamental as wages off the table doesn’t change the bargaining process. Of course it does. It changes the size of the pile on the table, by a huge lot. The unions lose bargaining power because they cannot offer lower wages increases to get something else. And of course, the government no longer has to trade anything of great value to get wage restraints, because thanks to the PSSA, wages are already fixed.

I’d remind you of the Supreme Court of Canada in B.C. Health Services, since, after all, it was them who started all this:

The more important the issue that is being taken off the table, the more likely it is that there will  be substantial interference with collective bargaining rights.

With the importance of wages to collective bargaining in any employment context, one wonders why anyone would even bother trying to prove otherwise.

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.

What Have We Learned?

There’s lots to discover from considering Justice McKelvey’s decision, and not just for labour lawyers. Let’s take a look at what we have learned.