University of Windsor's Latest Tactics Raise Intriguing Legal Questions

As I noted last week, the University of Windsor threatened to impose new terms and conditions of employment on its unionized faculty if a deal wasn’t reached by 12.01 a.m. on  July 8.  That date has now passed, but the employer has apparently decided to wait.  I was curious to see if the employer would carry through with that threat.  It might still.  But as more facts trickle out, this situation becomes more intriguing to us labour law geeks.  I’m sure that the University has top notch labour lawyers advising them.  But let’s ponder, as we do on this blog, whether the University might have crossed a legal line.
I noted in the earlier post that the law permits an employer in a lawful lockout position, as U. of

Windsor is, to unilaterally change working conditions.  That’s because the collective agreement has expired and so has the statutory ‘freeze’, the law that prohibits unilateral changes to working conditions during bargaining and prior to the legal strike and lockout date.
However, the Section 17 duty to bargain still applies, even during this period.  That much was made clear in the Supreme Court of Canada decision Caimaw v. Paccar of Canada way back in 1989.  In addition, as I noted in my last post, although the ‘freeze’ has been lifted, other parts of the Labour Relations Act governing the employer remain in effect, including (in addition to the duty to bargain): the Section 70 prohibition on employers interfering with the administration of a union.

Since the University of Windsor is legally required to bargain with WUFA, do you think if could unilaterally change terms of employment that have never been proposed or bargained over with WUFA?

I’ve been told that the employer never proposed some of the items on its list of changes it threatened to make unilaterally. That seems like a logical assumption when we read the list of items on the employer’s list,  but I don’t know for sure what has been discussed.  So I will deal with this a hypothetical labour law exam question.
Let’s assume that the employer never proposed to stop collecting unions dues, paying insurance premiums, making pension contributions, and respecting the grievance procedure.  Assume further that the first the union hears of this plan to unilaterally change these terms is via a letter sent directly to employees, and not the union.  [Again, I am now told that is what happened, but I don’t know for sure].

If those are your facts, then it would seem the University has some legal problems, doesn’t it?  Or do you think that Windsor is staying within the bounds of its legal rights with its’ latest tactics?

In essence, you would have an employer who announces a surprise set of changes to working conditions directly to the employees (bypassing the union), about which there has been no collective bargaining.
My view has always been, based on a reading of the case law on unilateral changes by employers, that the employer has to discuss the changes and bargain about them before it can just impose them on the bargaining unit employees.  For example, read carefully the language of the Supreme Court in Paccar, or OLRB decisions such as Neenah Paper Company of Canada or Devilbiss Canada Ltd (not on CanLII).  The facts are different in those cases, but the language of the decisions certainly seem to me to suggest the writers assumed that an employer would have to propose and bargain proposed changes before imposing them.  The idea is captured in this OLRB passage from Hamilton Automatic Vending Company (1988) (para. 12):

“we note that the expiry of the “freeze” period …  would not in itself make a change lawful. Even after the freeze period expires, a change in terms and conditions of employment may constitute a breach of section 17 (duty to bargain) of the Act if the change has not first been made the subject of discussion at the bargaining table: see DeVilbiss (Canada) Limited, [1976] OLRB Rep Mar. 49, particularly at paragraph 17.

What do you think?  Could the University of Windsor impose terms on its faculty that have never been bargained with WUFA at the bargaining table?
Another intriguing legal issue arising from the facts (as I understand them so far):  I presume that WUFA has proposed the inclusion of a typical union dues checkoff clause.  If so, then by operation of Section 47, “there shall be included in the collective agreement ” such a clause.  The employer cannot provoke a strike or lockout over this issue.  The dues clause goes in.  One of the unilateral changes I see on the employer’s threatened list is to unilaterally stop collecting union dues.  If, as we know to be true, the duty to bargain with the union still governs the employer, and it would be illegal for the employer to refuse the union’s request to include a dues clause, can an employer actually unilaterally impose a change consisting of the repeal of dues collection?   Or would that be a violation of the duty to bargain?
These are really great questions for a labour law class.  However, for the faculty involved at Windsor, this is real life with real consequences.  I hope we never have to find out the answer to these question and instead the parties can find a way to reach an acceptable settlement.
Your thoughts, as always, are welcome.