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Have York Deans Violated the Labour Relations Act?

Here’s a good question for a labour law exam.  Yesterday, in a clear attempt to influence the outcome of the forced ratification vote next week by striking CUPE members, the Deans of York’s faculties issued an extraordinary message to all York employees (full text below).  The note mentions that the Deans had been “consulted” with throughout bargaining, presumably by the employer’s negotiators.  It then recommends that the strikers accept the employer’s offer in the context of a volley of gloomy language, including comments about “severe budgetary constraints”, the “worsening economic crisis”, the “significant negative impact” of the dispute, the “extremely difficult economic climate”, and the “debilitating strike”.   Its hard to imagine a message hitting the strikers any harder over the head–vote yes, or very bad things might happen to you and/or the university.

Keep in mind that for most of strikers, their de facto employer–the person they take orders from and must answer to–include the full-time professors (a minority of  whom have also taken it upon themselves to lobby the strikers to accept the employer’s offer) and the Deans of their faculties.  So the question for the law school exam is:  Does the notice from Deans amount to a violation of:

(1)  Section 70, which prevents employers, or persons acting on behalf of employers, from interfering with the administration of a union, but does not prevent the expression of opinions that are not threatening or intimidating and that do not amount to “undue influence”.

(2) section 72, which prohibits employers, or persons acting on behalf of employers, from making any kind of threat that intends to compel a striker to stop exercising their legal right to strike;

(3) section 73, which prevents employers, or persons acting on behalf of employers, from bargaining directly with unionized employees, and thereby by-passing the union; or 

(4) section 76, which prevents anyone from intimidating an employee for the purposes of compelling them to cease engaging in a lawful strike.

I won’t grade the answers, but I do encourage any of you out there to submit your thoughts on whether the communication from the Deans, set out in full below, might violate one of these sections. Bonus points for noting that, whatever the legal answer is, it is obvious that animosity between the employees, their faculty bosses, the Deans, and the University will be high for some time, regardless of how the vote goes next week now that everyone at the University appears to have taken sides in this dispute.

January 15, 2009 

Message from the Deans to the York community 

When CUPE 3903 went on strike in November, we all undertook to seek the suspension, with 
limited exceptions, of academic activities in our Faculties. In so doing, we acknowledged our 
reliance on the work of our CUPE colleagues in helping to carry out the academic mission of the 
University. In addition, we continue to recognize the importance to our graduate students of 
financial support for the successful completion of their “apprenticeship” in our profession. 
At the same time, we have had to recognize the unusually severe budgetary constraints that 
currently characterize all universities in the country in the midst of a worsening economic crisis. 
And we have had to consider the significant negative impact of a continuing labour disruption on 
all of our students, as well as on the reputation and academic development of the University. 
Having all these considerations in mind, we have reviewed the offer for settlement tabled by the 
University administration (and indeed have been consulted as negotiations were underway). We 
believe that the offer is a responsible effort to meet the needs of contract faculty and graduate 
students in an extremely difficult economic climate. Familiar as we are with the budget situation 
in our own Faculties, we do not believe that more can be responsibly provided. We hope CUPE 
members will recognize the gains they have made, and put an end to this debilitating strike by 
accepting the settlement offer. 

Cynthia Archer 
Nick Cercone 
Robert Drummond 
Dezsö Horváth 
Rhonda Lenton 
Kenneth McRoberts 
Patrick Monahan 
Doug Peers 
Alice Pitt 
Barbara Rahder 
Barbara Sellers-Young 
Harvey Skinner 

Socialize

10 Responses to Have York Deans Violated the Labour Relations Act?

  1. Val Reply

    January 16, 2009 at 12:47 pm

    Notably, the ‘spin doctor’ does not know that is less than proper to begin a sentence with “And we…” Did the Dean’s get to read this before it was sent out with their names on it? I cannot imagine that the most educated and responsible members if the University would allow themselves to look so careless. If I were a CUPE member, boy would I be feeling the pressure from this message. I would be very concerned about HAVING a job once the strike is over if they don’t take the deal on the table. That is really unfair. I hope it indeed proves to be illegal. If it isn’t it sure SHOULD be.

  2. Jamie Reply

    January 16, 2009 at 5:34 pm

    Is there anything in the Labour Relations Act about the union pressuring/bullying it’s members to vote in a certain way?

    CUPE 3903 has been incessantly emailing/writing it’s members since the University announced the ratification vote, INSISTING we do not accept the offer. In one letter they write: “Voting yes to a forced ratification will have negative consequences for all members”.

    Personally, I find CUPE’s approach to be much more offensive than the Dean’s letter.

  3. Howard Reply

    January 16, 2009 at 7:24 pm

    They too can make comments on the state of the University’s affairs. It is their jobs.

    It is not possible to apply every letter of a code to a particular problem.

    The Canadian Charters of Rights, the rights of the 50,000 students York serves,
    the contracts TA signed all are into play.

    I am sure lawyers are consulted before any one writes anything.

    This was predicted by a few web sites, even in November 2008, the day the strike started,
    (York University strike is CUPE’s Waterloo : Macleans OnCampus)

    http://oncampus.macleans.ca/education/2008/11/08/2008-york-university-strike-is-cupes-waterloo/

  4. Chelsea eff Reply

    January 16, 2009 at 10:09 pm

    –full disclosure–: cupe 3903 member.

    Is it wrong that Dean Robert Drummond is on the bargaining team for the university and signed this document without that disclosure?

    or is it just slimy that he signed that but downplayed his role in the very creation of the offer being deemed legit?

    i think skinner is on their BT as well.

    its so LOLable
    we, these bros who wrote the offer, now wear our Dean hats and present this as the only reasonable thing to do facing a doomsday scenario

  5. Karen Reply

    January 17, 2009 at 1:52 am

    Re: Jamie’s analysis of CUPE’s ‘Vote No’ campaign.

    One thing that needs to be assessed in this argument is the difference in power between the employer versus the union. Whereas there will be no negative repercussions from the union whichever way members decide to vote, the employer has the ability to devastate careers (frankly, the delay tactic used by the employer in negotiations already has done this, on top of exaggerating the pre-existing class system amongst graduate students and contract faculty) or at the least, severely delay them. This power difference is precisely the reason these sections of the labour relations act were penned in the first place. Any assessment of the legalities of this situation should take the spirit of related laws into account.

  6. admin Reply

    January 17, 2009 at 9:00 am

    Karen, you are correct, and the Labour Board does take into account the different power structures involved. Unions cannot threaten members to try and persuade them to vote one way or the other in a ratification vote. That is covered by section 76, which applies to every person. But since unions don’t usually have any actual power to adversely affect the employees’ livelihood, the labour board usually concentrates on threats of a more physical sort. In the case of employers, on the other hand, the concern is usually on threats to job security, since employers clearly do have the power to make decisions that can adversely impact the employees jobs and economic security.

  7. Worried Union Member Reply

    January 18, 2009 at 8:30 am

    It’s inaccurate to claim that unions don’t have power to adversely affect employees. CUPE 3903 is well known for applying coercive pressure on members during actions and during this strike in particular, extending to threats and harassment.

    An acquaintance TAing in another course was telephoned by her CD, another 3903 member, who pressured her to vote against the offer in the upcoming supervised vote. When she responded that she intended to vote yes, the CD said it was unlikely she would be asked to teach in that course again as a result. She feels intimidated and now fears for her job as well.

    In the week leading up to the ratification vote, the union has taken to making unannounced visits to non-picketing members at home, instructing them to vote against the deal. Several people visited in this manner have reported finding this intimidating. At best the visits were a bad idea and a waste of union resources already stretched thin by the strike. At worst they constitute harassment and come close to violating the act in the same way the Deans’ letter may.

    On the departmental listservs like GRAPSCI, members, including members of the executive, attack even supporters who question strike strategy. This has turned many people off the strike, including me, a staunch 3903 supporter until recently. Even asking people to tone down the rhetoric leads to attacks.

    GMMs are well-known battlegrounds in 3903. The union’s failure to reign in its more assaultive members, including parts of its executive, has done great damage to our democratic structure.

    It is very important for unions to be aware of employer harassment during a strike and to make complaints where appropriate or strategically valuable. But it is equally important for unions to refrain from harassing members in the same way. It might not lead to complaints against s.76 (the members I know who are upset may not do anything about it), but it erodes support within the union.

    3903 execs reading this: how you conduct a strike has huge implications for its outcomes, especially in terms of support from members. A lot of people otherwise supportive of the union have since stopped supporting the strike, and this has been very evident on the picket lines. It may have consequences for the forced rat vote on Monday, too. What’s the good of striking if your members come to see the union as more of an enemy than the employer?

  8. Chris MacDonald Reply

    January 18, 2009 at 2:33 pm

    It seems kind of desperate.

    I’m skeptical about the power/coercion argument, though.

    Members of the union are indeed reliant on the goodwill of one or another Dean for their future employment. But a threat is only meaningful if the person issuing the threat has access to the information required to carry it out. Presumably no Dean will ever know if a *particular* union member voted for or against ratification (except in the highly unlikely event of a unanimous vote).

  9. A.L Reply

    January 18, 2009 at 5:03 pm

    RE: power/coercion

    Over the course of the past two months, those who are voting “no” are very visible. As a CUPE member (a GA) I have been out on the picket lines everyday. My line is set up outside of my department’s building. Everyday, I see the Dean, GPD and admin staff enter in the morning, leave and return for lunch and leave at night.

    Thankfully, my department has been extremely supportive. However, my point is that we are extremely visible. There are REAL issues of abuse of power when the department knows who we are and how invested in this strike we are. I don’t doubt that there will be power issues and hostility on both sides when we do return and perhaps these Deans might direct their staff to be a little less accessible or helpful to those who have supported the strike. Particularly in the Unit 2 “race” to get to teach courses.

    And on a different note, even if York does not have the money to meet our demands as the Deans say, their offer could be judged solely on the movement (or lack thereof) on NON MONETARY issues such as whistleblower protection and parts of the back to work legislation.

  10. Mike Reply

    January 18, 2009 at 11:26 pm

    I have a question for those knowledgeable about the law: is it illegal to make substantial changes to a petition after it has already been circulated and signed?! An interesting argument appears in the comments page responding to the petition a minority of York faculty sent to the CUPE membership. It alleges that the petition’s author, Bernie Lightman, found a very critical error in the petition after the fact, omitted these false claims to cover up his mistake, and sent out the letter anyway, without telling any of the signatories.

    Here is the url: http://www.yorkustrikeupdates.com/?p=80

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