On McGill University’s Scorched Earth Labour Relations Strategy

By David Doorey, Professor, York University

It’s been nearly 3 years since law professors at McGill University formed a union. In early November 2021, the Association of McGill Professors of Law (AMPL) filed an application with Quebec’s Tribunal administrative du Travail (TAT) to be certified as the legal collective bargaining representative for the professors. McGill is unusual by Quebec and Canadian standards insofar as its professors were non-union in 2021. McGill could have responded in the manner that we expect of our publicly funded institutions, by respecting the right of its employees to choose collective bargaining and to get on with negotiating, in good faith, a first collective agreement.

However, McGill’s administrators chose a different route, one well-worn by such notable anti-union employers as Walmart and Starbucks, among others. The philosophy of these rogue companies is to resist unionization at all costs, even if that means spending unknown sums of money on expensive lawyers to stall, litigate, and obfuscate, and even violating labour laws if that advances the overall goal of avoiding collective bargaining. The playbook involves manipulating labor laws to drag out collective bargaining in the hopes that the cost, hassle, and hostility will ultimately cause the union and the workers to give up on the idea of collective bargaining.

McGill could have accepted that a bargaining unit comprised of professors in the Faculty of Law is an appropriate bargaining unit. After all, that is precisely the bargaining unit at my university, where Osgoode Hall Law School professors are represented by the Osgoode Hall Faculty Association.  Other York professors are represented by the York University Faculty Association.  There is nothing novel about a university bargaining with a law faculty union.  However, McGill elected instead to adopt an age-old union avoidance strategy, arguing that only a unit comprised of all 1694 professors employed by McGill is acceptable. When it then (predictably) lost that argument, it filed a judicial review application in the courts that is also almost certain to fail.

Access to unionization in the Quebec (and Canadian) labour law model depends on a union proving that it has the support of a majority of employees in an “appropriate bargaining unit.” This model therefore creates what I label in my book (The Law of Work) the “golden fraction” comprised of the numerator (number of employees who support the union and collective bargaining) over the denominator (total number of employees in the “bargaining unit”). Employers hoping to defeat a union’s campaign will attempt to persuade labour tribunals to increase the denominator in the hope that this will reduce the overall percentage of workers who support collective bargaining.  If McGill could persuade the TAT that the only appropriate bargaining unit is an “all professors” unit, then it would not matter if 100 percent of law professors signed union cards.  Forty out of 1694 is not even close to a majority.  The union would lose, the AMPL would be dissolved, and McGill would likely achieve its goal of remaining the only Quebec university without unionized faculty.

The problem with this line of argument is that labour tribunals know well that employer attempts to dramatically increase the size of bargaining units are almost always for the dominant purpose of defeating access to collective bargaining. I worked on a case years ago involving an attempt by a union to represent employees at a single Walmart store.  Walmart argued that a single store was not appropriate and that the bargaining unit should comprise at least all employees working for Walmart in the city where the store was located.  If Walmart had won that argument (it did not), then no Walmart employees would have had collective bargaining, since the union had not organized employees at the other stores.  Just last year, Starbucks responded to an application by a union to represent employees at one store in Lethbridge by arguing that the only appropriate bargaining unit included all five Starbucks stores in Lethbridge.

Nobody believes that Walmart and Starbucks made these arguments because they want more of their employees to be unionized. The notoriously anti-union companies argued for larger bargaining units because they wanted to defeat the employees’ attempts to access collective bargaining in the first place. This is the strategy that McGill has deployed in its attempt to block the law professors from unionizing.

There are circumstances in which a union’s proposed bargaining unit may be too small and make no “labour relations sense”.  However, this is rare, for the simple reason that unions know the case law and rarely apply for a bargaining unit that the labour board will reject as inappropriate. The general rule in Quebec, as elsewhere in Canada, is that the unit that the union applies for will be accepted as appropriate, unless the employer can demonstrate that the unit makes no labour relations sense at all.  The TAT has expressed the test as requiring the employer to demonstrate that the bargaining unit proposed by the union is “devoid of common sense which on its face does not allow one to think that the objective of collective bargaining can be achieved.” 

In other words, the union is given discretion to choose what group of workers it wishes to represent, and that choice will be accepted unless it makes no sense at all.  The reason for this approach is that the purpose of labour relations legislation is to facilitate access to collective bargaining for those workers who want it.  The fact that collective bargaining at York University has functioned fine for years with a ‘law faculty only’ bargaining unit rebuts McGill’s argument that such an arrangement is “devoid of common sense”.

With this legal test in mind, it came as no surprise to labour lawyers that the TAT ruled in November 2022, after 6 days of expensive hearings stretching over a year, that a bargaining unit comprised of professors in the Faculty of Law was an appropriate bargaining unit.  The fact that an “all professors” bargaining unit at McGill would also be appropriate or even preferable was neither here nor there;  the test is not whether the union’s proposed unit is the ideal or best possible bargaining unit imaginable, but whether a unit of law professors is an appropriate unit.  It clearly is.  And so AMPL was certified by the TAT as the exclusive representative of the law professors.

This should have been the end of it. McGill made its argument, which its labour lawyers would have known was a long-shot, and lost. However, in the standard playbook of the big anti-union corporations, McGill decided that the loss at the TAT was just the beginning of what could be a years’ long legal battle aimed at depleting the funds of AMPL and the will of its members. McGill filed a judicial review application asking the courts to overrule the TAT’s decision. In principle, the application should have little chance of success. The test is whether the TAT’s decision is within the scope of reasonableness given the facts and the legal authorities. The court is required to give deference to the TAT, and it is inconceivable to me that a Superior Court judged well versed in labour and administrative law would overrule the TAT in the exercise of a discretion that falls squarely within its core expertise.

However, winning may be beside the point for McGill.  If money for lawyers is no obstacle, McGill can drag this litigation out for years to create an air of uncertainty, like a sword of Damocles hanging over AMPL and its members.  Dates have been set for the judicial review to be argued in December 2024, but even if McGill loses at the Superior Court, it could just appeal upwards to the Court of Appeal and maybe even the Supreme Court of Canada.

Meanwhile, AMPL has attempted to move forward with negotiations.  Some bargaining sessions took place beginning in late 2022 and through 2023. However, while some terms were agreed to, progress was slow and in April 2024 the law professors began an unlimited strike that continued until June when it was conditionally suspended.  At around this time, McGill made a request to the Minister of Labour to refer the bargaining dispute to arbitration. On July 24, the Minister acceded to McGill’s request, triggering an extended process under the labour legislation involving more conciliation and, barring an agreement, an eventual order by the arbitrator to refer the dispute to binding interest arbitration that would terminate the professors’ right to strike.  At this point, McGill essentially walked away from bargaining, refusing to appear at agreed upon bargaining dates over the summer. Faced with a recalcitrant employer, the AMPL professors resumed its strike in late August, effectively shutting down the law school apart from a handful of courses taught by sessional instructors.

It appears that McGill has now decided to just sit back, do nothing, and wait for as long as it takes for the arbitrator to eventually trigger an order that will end the strike. How long that could take is anyone’s guess. Weeks? Months? The refusal to meet for bargaining purposes may very well amount to unlawful bad faith bargaining and AMPL has filed seven complaints with the TAT already alleging illegal behaviour by the university (two settled, granting remedies sought by AMPL as well as monetary compensation among other remedies).  The TAT ruled just last week that McGill’s communications sent directly to AMPL members that were critical of AMPL were, on their face, unlawful interference in AMPL’s representation of the law professors. The TAT ordered McGill to cease communicating with AMPL members directly unless it first runs the content of those communications past AMPL.

McGill’s immediate goal is to get the arbitrator to end to strike.  That would force the angry professors back into the classrooms, but the process for getting a first collective agreement could still drag on for years. The arbitration process itself will take months.  Then, once the arbitrator issues an award, McGill could pay its lawyers even more money to then challenge the award as they have done with the TAT decision certifying the AMPL.  Between a challenge to the award and the ongoing challenge to the bargaining unit description, McGill could stall the conclusion of a first collective agreement for this small group of professors for years while accumulating millions of dollars in legal fees.

Or, McGill could just bargain a collective agreement in good faith like so many other Canadian universities have done for decades.  It cannot be emphasized enough how unusual it is in Canada for a publicly funded post-secondary institution to so aggressively (and unlawfully) resist its employees’ attempts to access collective bargaining.  The fact that McGill law students face the possibility of losing a term is simply the cost of pursuing the end game of impeding the unionization efforts of its professors.  Rogue corporations like Walmart simply shut down if their union-busting efforts fail.

McGill won’t shutter the law school. But its scorched earth response to the simple attempt of its law professors to bargain a collective agreement has already caught the attention of the academic world. The harm to the reputation of the university and the law school is cast.  Morale at the law school is at an all-time low amongst professors and students alike. Law professors may look for an opportunity to leave McGill, and it will become exceedingly difficult for the university to attract top talent moving forward. And, at the end of the day, what has McGill achieved for its efforts?

There’s still time for McGill to right the ship, to sit down and bargain a contract, to drop its spurious judicial review, and to begin to rebuild the relationship with its faculty and students. Otherwise, it is hard not to predict dark days ahead for this once great educational institution.