Strike and Bargaining Law 101: York University, U of T Strikes Continue

March 10, 2015

The CUPE strikes at York University and U of Toronto continue.  Last night CUPE members in 2 of 3 units at York rejected a proposed settlement.
Curiously enough, we were just about to start learning about how Ontario law governs strikes and lockouts in my Industrial Relations and Labour Law course as the strike at York University commenced and the course was suspended.  Might as well use the present situation as a teaching moment to provide a quick overview of where we are at in this dispute, legally speaking. Here’s a synopsis of the legal framework under which the negotiations are taking place at York.
Unionization and Collective Bargaining
The legal story really begins with workers electing to move from the nonunion world to the unionized world.  I’m not sure when CUPE 3093 was first certified, but at some point, a

majority of York employees in bargaining units of RAs and TAs and contract faculty elected to unionize.  There are three separate units (Unit 1, Unit 2, and Unit 3).
Once the workers unionized, York and CUPE were legally obliged by Section 17 of the Labour Relations Act to engage in collective bargaining “in good faith” and to “make every reasonable effort to make a collective agreement” [the duty to bargain‘].   Since CUPE is the exclusive bargaining agent of all of the employees in the bargaining unit, York was no longer legally permitted to bargain or impose individual contract terms on individual employees.
The CUPE members appoint a bargaining committee to represent them at the bargaining table with the employer.
The Lead up to a Legal Strike or Lockout Position
The parties engaged in a series of bargaining sessions and agreed on some things but not others.  At some point, one of the parties requested that the government appoint a ‘conciliator‘, who is like a mediator who comes to the bargaining and tries to help the parties reach a deal.  This conciliation process is a prerequisite to a legal strike or lockout.  That conciliator eventually concluded that a deal wasn’t imminent and informed the Minister of Labour that the parties have been unable to reach a deal.  At that point, the Minister of Labour choses between two options:  (1) appoint a conciliation board to do more conciliation; or (2) tell the parties that no conciliation board will be appointed (this letter is called a “No Board Report“).  Almost always, the Minister choses the latter option and that happened at York and U of Toronto.
The No Board Report officially triggers a countdown to a legal strike or lockout position.  The Labour Relations Act provides that the legal strike or lockout date is 14 days from the date the No Board Report is “deemed” to have been sent to the parties.  That works out to 17 days because of “deeming” rules.  In any event, that date came on March 3rd and a strike commenced.  The strike is legal because it is timely, and also because the CUPE members voted to strike.  A mandatory strike vote is another precondition for a lawful strike in Ontario (Section 79(3)).
Note that only unionized workers have a legally protected right to strike in Canada.  The CUPE members are now exercising that legal right, and they cannot be fired or disciplined for doing so. They also have a legal right to engage in peaceful picketing around York’s campus as I have explained before.
Mandatory Ratification Vote
So far we have seen that the law imposes a lot of ‘democracy’ into the collective bargaining process:  (1) certification votes to determine if workers can unionize; (2) mandatory strike votes to determine if workers can lawfully strike; and now we add (3) mandatory ratification votes.  This was introduced by the Mike Harris Conservatives who were concerned that union leaders might agree to collective agreements that the membership didn’t want.  Section 44(1) of the Act says this:

A proposed collective agreement that is entered into or memorandum of settlement that is concluded …  has no effect until it is ratified.

This means that if the union’s negotiation team bargains a deal that it thinks is acceptable, it must still take that back to the membership to vote on.  This is exactly what happened at both U of T and York and in both cases, a majority of the union members rejected the proposed collective agreement (at York, unit 2 accepted the deal but units 1 and 3 rejected it).   As a result, there is no deal and the parties must return to the bargaining table and the strike continues.
Now What?
We are now back to square one.  The union’s bargaining team has been sent a message that the membership is not happy with the deal that was brought back to them.  That message is strongest from Unit 3, which rejected the proposed deal by a vote of 77%.  Unit 1 was pretty split, with only 59% voting to reject the deal.  The duty to bargain continues.
The message from the University today seems to be that it intends to resume classes taught by non-striking teachers.  That would certainly mean Osgoode Hall Law School and all those other units that do not use CUPE Unit 1 and Unit 3 instructors, including the School of HRM among others.  This is allowed because Ontario law permits employers to continue to operate during a strike.  There is no right in the Faculty union collective agreement to respect a lawful picket line at the University, and therefore any full-time professor who refused to teach a course that had resumed could presumably face discipline.
One option is that the parties could agree to refer the remaining disputed issues to an interest arbitrator.  Section 40 permits this, but it is rarely used, because one side or the other usually doesn’t want an arbitrated solution.  Usually the side that thinks interest arbitration would serve its purposes publicly proposes this as a way to end the strike, trying to make the other side look unreasonable.  This is part of the strategies of collective bargaining.
In 1997, the faculty union at York (YUFA) proposed binding arbitration to end a strike, and York University rejected that idea, arguing:  “Arbitration risks handing over the future of the institution, and the definition of a new contract for faculty, to a third party who cannot possibly appreciate the subtleties and complexities of a university such as York.”  However, in the last CUPE 3093 strike in 2008, York University was the party that wanted interest arbitration, and CUPE rejected that idea.  I haven’t noticed whether this gamesmanship has begun at either York or U of T yet, but watch for it.
Back to Work Legislation?
The last CUPE 3093 strike at York ended after the Ontario Liberals introduced Back to Work Legislation.  Thereafter the parties reached a negotiated settlement.  This could happen again at both York and U of T if the strikes linger on.  Only now, there is a new twist.  The Supreme Court of Canada’s recent ruling that the Charter protects a right to strike could play a role in how the Ontario government responds.  The government could still introduce back to work legislation.  However, there are real questions about whether the government could still include the same limitations on the arbitrator’s discretion as it did in 2009.
For example, the 2009 Back to Work legislation required the arbitrator to consider the following in crafting the collective agreement:

1. The employer’s ability to pay in light of its fiscal situation.

2. The extent to which services may have to be reduced, in light of the award, if current funding and taxation levels are not increased.

3. The economic situation in Ontario and in the Greater Toronto Area.

4. A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment.

The SCC said that when the right to strike is restricted, it must be replaced by a meaningful neutral dispute resolution mechanism.  It is arguable that the above noted  parameters are designed to stack the cards in favour of the employer’s position, especially considering that it is the Liberal government that decides how much money to give the universities.  The Liberals say we are not giving the universities any more money to pay CUPE members, and then imposes a law saying the arbitrator must consider whether York University has any money to pay CUPE members more.  Will that model satisfy the SCC in a system that guarantees a right to strike?  We may find out.
And that is where we are at.  Stay tuned….