Update July 4 — Employer Chooses the Option of Unilateral Stripping of Contract Rights [See original Post July 2 2014 follows this update].
So, the Employer has opted for third option discussed in my below post from yesterday: unilateral change of contract terms. In this letter to the Faculty, the President of UW (Alan Wildeman @UWin_President) gave his characterization of the negotiations, the employer’s position, and basically explained to employees his view that their union is being delusional and irresponsible. The President writes:
The University finds itself in a position where WUFA’s bargaining team has yet to acknowledge the very real fiscal situations we face, and therefore is now taking steps to draw sharper attention of the situation to all members.
The letter then advises that effective July 8, the Employer will no longer honour the following terms of the expired collective agreement:
i) The University will no longer make employer contributions to the Money Purchase Plan component of the Faculty Pension Plan (Article D of collective agreement);
ii) The University will cease to pay the premiums for all health insurance benefit coverages for WUFA members described in Article F of the collective agreement, including the Green Shield Supplemental Hospitalization Benefit Plan and Green Shield Extended Health Benefit Plan;
iii) The Grievance and Arbitration provisions in Article 39 of the collective agreement will no longer be in effect;
iv) The University will cease to honour requests for reimbursement of Professional Development and Membership Dues described in Article I of the collective agreement;
v) The University will cease collecting union dues from members and forwarding those dues to WUFA (Article 4:01 and 4:02).
[As an aside, labour law students, do you think this communication violates the Act’s prohibition (in Section 73) on employer’s bargaining directly with employees, or Section 70’s prohibition on employers interfering with the administration of a union? Or is lawful employer communication?]
As I noted in my original post (below), it is lawful for an employer in a legal lockout position to unilaterally change the terms of employees’ contracts. It’s an odd little space in the law. The workers are still unionized, so the common law principle of constructive dismissal doesn’t apply. But the law gives the unionized employees a response weapon to a unilateral change to working conditions: a full strike, or rotating part strikes, or a full or partial work-to-rule. However, none of these tactics can be deployed by the employees until a successful strike vote has been taken. Unions usually take strike votes before the legal strike/lockout date is reached, so that they at least have all options open to them.
For reasons I’m unclear of, WUFA did not take a strike vote early on like most unions do, and so is not now in a position to use any of these weapons to pressure the employer or make it think twice about imposing changes. It would now have to organize a strike ballot in the summer before it has any lawful means to respond to the employer’s unilateral changes. This leaves the union in an battle with few weapons available to defend themselves form the employer’s attacks.
CUPE in the recent City of Toronto bargaining also did not take a strike vote, because it wanted to show the public that ‘it didn’t want a strike’. When the employer then threatened to impose contract terms on the eve of the legal lockout date, the union caved. I thought CUPE had made a tactical error by limiting its legal options. I see zero benefit to a union in not taking a strike vote, just in case the employer opts for the option of imposing contract terms. The absence of a strong strike mandate may embolden an employer, who knows that it is safe from any job action at least until the union is able to get that strike vote in its back pocket.
Even in summer, professors and librarians could cause serious operational and academic problems for the employer by randomly refusing to do key tasks the employer needs doing. I serve on a variety of committees that run through the summer, and I teach two summer courses. If I threatened to stop teaching those courses at any moment, or stopped showing up for my committees, serious uncertainty and difficulties would result for the university. There needs to be some lever to apply pressure on an employer who would take the drastic route of unilaterally stripping contract terms. Having not taken a strike vote yet, WUFA members have few legal options available to them to make the employer think twice of carrying out its threat.
But every round of bargaining is different, and I assume WUFA had their own reasons for not holding a strike vote before now. What do you think those tactical reasons were?
My Original Post from July 2, 2014
This story hasn’t attracted a lot of news outside of Windsor, but this morning, the University of Windsor and its professor’s union find themselves in a legal lockout and strike position under the Ontario Labour Relations Act. The Windsor University Faculty Association (WUFA), which represents about 850 professors, librarians, and sessional instructors, has said it has no intention to strike, and (I believe) has not taken a strike vote, which is a prerequisite to a lawful strike in Ontario. However, the employer has not similarly promised that it will not lockout its employees. That is causing big concern for students and faculty alike.
News so far is that the University has agreed to continue negotiations, for now. Let’s review the legal landscape in which the parties now find themselves.
A Quick Review of the Legal Situation Now in Effect at Windsor University
A Negotiated Settlement with No Escalation: The most likely scenario is still that the union and employer continue to bargain and eventually reach a deal without a work stoppage of
any sort. I’m not there, and have no inside information, so I don’t have a feel of the issues or personalities at the bargaining table. Sounds like a major issue is wages and employer proposals to remove some existing benefits. The employer has also apparently offered a big raise (I hear 17%) to sessional instructors, who are in the same bargaining unit as full time faculty. This can create tension within the unit between competing membership interests. The employer wants to take away benefits from some members, and give benefits to other members.
The Employer Locks Out the Faculty: The time line of this bargaining dispute is not good for the professors. The employer orchestrated the timeline by managing when it applied for government conciliation, ensuring that the lockout/strike deadline would fall near the beginning of summer. The employer could lock out the workers anytime now, cutting off their salaries through the summer, when there are fewer classes and students on campus. The employer would save money in labour costs over the summer, and the real pressure from students and the public to settle would not escalate until the fall term approaches and then begins, without faculty to teach courses.
But this is also a risky strategy. It would be like throwing a hand grenade into employee relations. It would piss of the professors to no end, who would no doubt receive a lot of financial and moral support from other faculty unions across the country. It is rare for a university to lockout professors who are prepared to keep working.
The Employer Imposes Contract Terms Against the Will of the Union, Faculty: Locking out the professors is not the University’s only option though. It could also just impose its last offer, or some variation of it, on the professors. The professors would still get paid and would be able to come to work, but their terms of employment would now be whatever the employer decides they are. This is what the City of Toronto threatened to do in 2012. It said it would not lockout its unionized employees, but would simply impose its final offer on them once the legal strike/lockout date is reached. That offer included a wage increase (the union had offered a 3 year wage freeze), but also language allowing the employer to contract out hundreds of jobs. That threat led the union to settle. [For nostalgia, you can read my blow by blow chronology of the City of Toronto bargaining as it happened in 2012. The February 3rd entry explains the strategy of an employer unilaterally imposing new contract terms, and law behind it]. I haven’t heard if the University is thinking about deploying the strategy.
This power of the employer to unilaterally impose whatever terms it wants is arguably more powerful than the right to lockout workers. It is the tit-for-tat of the right of workers to strike. However, it is rarely used by employers. I suspect that is because it amounts to the employer ramming its terms down the throats of workers, and then telling them to come to work, smile, and do a good job. But those workers who don’t like the employer’s terms or its hardball bargaining strategies can be very disruptive in the workplace. Basic HRM strategy tells us that a labour relations strategy that harms morale and angers the workers will produce a noticeable decline in productivity, and that this resentment could linger long after the labour dispute is resolved. For most employers, the long term risks associated with imposing contract terms against the will of their employees will outweigh any temporary benefits.
Keep in mind that unionized workers confronted with an employer who unilaterally imposes contract terms can engage in a partial or full work stoppage, provided that the union has conducted a successful strike vote. This is likely to lead the employer to impose a lockout. For example, if Windsor imposes its last offer on the faculty, and the union had taken a successful strike vote, the faculty will still get paid. But at any moment that is most inconvenient to the employer, all or part of the faculty can just not show up to work. Or, the faculty can refuse to do part of their job, such as service. This will bring a halt to most administration functions at the university. Would the employer want to then keep paying the faculty, or would it just decide to completely lock them out to save those labour costs and apply economic pressure on the employees to settle.
You can see why most employers steer clear of their legal right to impose contract terms rather than lockout their workers. It poisons bargaining and escalates the situation to a point that can easily lead to a full out work stoppage. However, in this case, WUFA has not taken a strike vote. Therefore, the union is extremely vulnerable if the employer opts to impose its last offer. The professors would have no legal weapon to respond and apply pressure on the employer. The union would need scramble to take a strike vote in order to keep bargaining rolling. Otherwise, the employer wins and can impose its last offer. This is why my advice is always for a union to take an early strike vote, as a shield to an aggressive employer.
The Employer Requests a Vote on its ‘Final Offer’: The employer has one other weapon at its’ disposal. If if thinks that a majority of the faculty would vote to accept it’s final offer, it can ask the government to order a vote, asking the workers to decide if they want to accept the deal. This is called a Final Offer Vote, and it appears in Section 42 of the Labour Relations Act. That section was introduced in the 1980s by a Conservative government at the same time they introduced the current section 47, which allows for mandatory union dues checkoff clauses in collective agreements. The right to insist on a vote of their final offer was the quid pro qua given employers in exchange for the union benefit of union dues checkoff. Employers use this power when they believe the union leadership is blocking an offer that a majority of employees would accept if given the chance to decide. By including perks that would appeal to a majority of employees, employers may believe they can get their offer accepted even if there is strong opposition within the bargaining unit.
The risk to an employer of demanding a final offer vote is that the employees reject the offer. This would mean the employer misread the situation and the mood of the workers. A rejected final offer vote can cause the workers and the union to further dig in their heels. It means that the employees will now expect the employer to sweeten the pot, and expectations can shape the outcome of negotiations.
So that is the scenario. Let’s keep an eye on Windsor over the coming days, and watch for a press release saying the parties have reached a tentative settlement. Failing that, we might see one of the strategies discussed in the post deployed.
Issues for Discussion
If you were the employer, and the union doesn’t agree to your proposal, would you lockout the workers? What are the risks and benefits of doing so?
Would it make sense for Windsor to impose terms on the faculty over the summer? What impact will that have on the eventual outcome of the next collective agreement?
Should the employer request a final offer vote?
A legal weapon available to workers confronted with an employer that imposes contract terms is rotating strikes and work-to-rule, which can create big problems for the employer. However, that option is only available if workers have approved a strike in a strike vote. My understanding is that no strike vote has been taken yet (Am I wrong?).
Would it make sense for WUFA to hold a precautionary strike vote so that option is on the table? What reason(s) do you think explain why WUFA has not to date taken a strike vote.