Without a Successful Strike Vote, York Faculty Are Sitting Ducks

By David Doorey, York University

In 2018 I published a piece called “The Folly of Not Voting to Strike in Canadian Collective Bargaining Law”.  The context was ongoing collective bargaining involving my faculty union, York University Faculty Association (YUFA) and York University. There is always a faction of professors who believe that YUFA should not conduct a strike vote for one reason or another.

Of course, no one wants a work stoppage. However, the point I made back in 2018 (and periodically throughout my almost 30 years in labour law) is that the legal model expects workers to take a strike vote.  Strike votes are a normal part of the bargaining process. They are not provocative.  However, not taking a strike vote–and not voting to strike if necessary–makes absolutely no sense within the context of Ontario’s labour laws.  Without a successful strike vote in the bank, unionized workers are sitting ducks in the collective bargaining process.  A strong strike vote is what keeps the employer at the bargaining table. Without one, the employer can simply impose its will upon the workers who will be unable to lawfully resist.

The ongoing 2024 round of collective bargaining involving faculty at York University is a perfect case in point.

The YUFA collective agreement expired in April 2024.  The parties have been bargaining, but York has been unusually aggressive in this round of bargaining in terms of rushing the process along.  It quickly applied for government conciliation and then followed shortly thereafter (last week) with a request for something called a “no board report”.  A “no board” report is simply a letter from the Ministry of Labour stating that a “board of conciliation” will not be appointed.  This is key because the Labour Relations Act starts a countdown towards a legal strike/lockout date “16 days” from the date of the no board report.  The “no board” report was issued on July 16.  York’s strategy is to be in legal lockout position in the dead of summer and as quickly as possible.

What does the “no board” report issued on July 16 mean?

The ‘no board’ report of July 16 means that by the first week of August, York can lawfully lockout its faculty.

I have no idea whether York would do that. Certainly, doing so would be unprecedented and expose the University to blatant hypocrisy given its long-standing labour relations messaging that “keeping the students in class” is the paramount objective.  An entirely unnecessary lockout would come as a big surprise. Add the fact that a lockout would create absolute chaos at the new Markham Campus, which is accepting its first cohort of students in September, and I think a pre-emptive summer lockout is unlikely. But I rule nothing out.  The fact remains that York rushed the bargaining process to get to a point in early August when it could  lawfully lockout professors. The university would stand to gain financially from a lockout since professors would not be paid, and an August lockout would obviously disrupt students far less than a work stoppage at any other time.

Final Offer Vote

A lockout is not the only option available to York. It can also require that the last offer it puts to YUFA be put to a forced ratification vote.  York has tried this before with its CUPE bargaining units with bad results (CUPE members overwhelmingly rejected the offers).  The law permits employers the right to have a vote taken on its final offer, but it can only do this once. So, if York believes that a majority of professors will accept its final offer, it can take this gamble. A rejected final offer vote means simply that there is no deal.

Unilateral Imposition of Contract Terms

However, another option for York University is to simply impose its final offer on the professors. This is where the necessity of having a successful strike vote in your back pocket is paramount.  I discuss this option on pages 590-592 of my book The Law of Work.  Let me explain this option in plain language.

The first point to understand is that by the time the University is in a legal lockout position (early August by my count), two things are true. First, the previous collective agreement is expired (recall it expired in April). Second, the law that prevents employers from unilaterally altering terms of employment (known as a statutory bargaining freeze) no longer applies. As a result, once the employer is in a legal lockout position, no law and no contract prevent the employer from making unilateral changes to working conditions.

Professor Paul Weiler, formerly of Osgoode Hall Law School and then Harvard Law School, explained this point decades ago as follows:

Suppose the employer cannot get an agreement from the union to change requirements in a new contract. In that event, management is entitled to act unilaterally.  It can simply post an announcement to its employees that it is reducing the price it will pay for labour and the amount of labour that it is going to use.  That is what it means for management to exercise the rights of property and of capital; to be able to propose the terms upon which it will purchase labour for its operations.

In other words, the law permits an employer to unilaterally impose terms on its unionized workforce once it is in a legal lockout position. This right has been confirmed by the Ontario Labour Relations Board, including in this case, where the OLRB concluded that the right of an employer to unilaterally impose new contract terms once it is in a legal lockout position is a weapon in the employer’s “arsenal” of collective bargaining tools in Ontario. In that case, the employer unilaterally imposed a 6.4% wage cut, which the OLRB ruled was a lawful exercise of management rights.

In practice though, employers rarely exercise this right to impose contract terms for the very simple reason that if the workers don’t want regressive terms imposed upon them, the law gives them an obvious response: they can engage in a partial or full strike.  That is how the legal model is intended to work.  Paul Weiler continues:

What rights and resources do the employees and their union have in response to an employer that unilaterally imposes new terms of employment?  In essence, they have only the collective right to refuse to work on those terms, to withdraw their labour… That is what a strike consists of.

The OLRB made the same point in the case I mentioned above:

I see no reason why … a unilateral implementation of new terms and conditions (which have been offered to the union in collective bargaining) cannot form part of the employer arsenal.  As has already been stated: if the union and the employees do not wish to operate under the new terms and conditions they do not have to…  [The] union has the ability to respond.  If it and the employees are unhappy with the new terms and conditions of employment they can simply go on a full-blown strike or engage in other activity to restrict production.

However–and this is the key point to understand– The right of the workers to resist terms being imposed upon them by engaging in a strike is conditional upon a strike vote having been taken in which a majority of workers voted to strike.  A successful strike vote is a precondition to a lawful strike in Canada.  The entire rationale that justifies permitting employers to simply impose their offer unilaterally assumes that the workers have given themselves the ability to respond in the form of collective resistance if they reject the employer’s terms.

This is why, in my opinion, it is crazy for workers to not approve a strike mandate as a defensive measure.  An employer aware that a union has not taken a strike vote is licking it chops at the prospect of imposing its will, knowing that the workers cannot lawfully strike in response. This is the present situation at York.  YUFA has not yet taken a strike vote (although it now plans to). This leaves York professors vulnerable to York imposing its proposals on faculty beginning in early August.  Only a successful strike vote would block York’s ability to impose contract terms, since that strike vote would permit YUFA members to refuse to work under the imposed terms. This would undoubtedly create an incentive for York to remain at the bargaining table until a new negotiated agreement is reached.

A Successful Strike Vote is What Keeps the Employer at the Bargaining Table

As I explained in my 2018 post, there have been some high profile uses of the power of unilateral imposition of contract terms by big public sector employers in recent years when unions had not taken strike votes. The most relevant to the York situation is the case of the University of Windsor in 2014. The Windsor faculty association (WUFA) had not taken a strike vote, which left the professors vulnerable to imposition of terms.  Sure enough, when the legal lockout date had been reached, Windsor announced that it was making unilateral changes to the terms of employment of the professors.  The letter to faculty from the University President read:

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 President then advised that effective July 8 (the date that a legal lockout was permissible), “the Employer would no longer honour the following terms of the expired collective agreement”. The letter then listed items in the expired collective agreement that the University would henceforth ignore, including employer pension contributions, employer premiums to insurance policies, and the entire grievance procedure among other changes. The Windsor profs could not strike in response since no strike vote had been taken. Thereafter, WUFA scrambled to get faculty together in the dead of August and finally held a successful strike vote. Now having a lawful right to strike, WUFA members began rotating strikes in September and this caused Windsor to return to the bargaining table where a new deal was reached.

The York bargaining situation parallels the Windsor situation in many ways, including that: (1) YUFA has not yet taken a strike vote; (2) the university is pleading poverty; and (3) the lockout date is set for mid-summer.  It’s almost like the universities are operating from the same labour relations playbook.

I’m not at the York bargaining table, but a quick look through the employer’s proposals should give professors cause for concern if the employer were to unilaterally impose their proposals.  York’s wage proposals are abysmal, well below the going rates being given to professors in other universities (including 0 percent raise in year one!).  Compare that to yesterday’s arbitration award for TMU faculty, which awarded 3.5% in year one plus another 6% over the following two years. This award far outstrips York’s current wage offer.

However, leaving wages aside, there is other language in York’s proposals that would give management greater discretion over matters that should concern faculty.  Here’s just a couple of examples that I spotted on a quick review of the employer’s proposals, but I encourage folks to read the employer’s proposals themselves. By my reading:

• The employer has proposed that it have the unilateral right to increase the normal workload and teaching load of professors, deleting the requirement that any such changes first be studied by a joint employer-union committee.

• The employer has proposed new language that would permit it to require professors to share offices rather than have their own office (the flashy new HR language is “hotelling”). Professors could show up in September to find two other professors sharing their office.

There are other proposed changes as well that are intended to give management more discretion to make unilateral changes that will impact the working lives of faculty members.

None of this would be of great concern at this point in bargaining if YUFA members were in position to engage in some form of strike to pressure the employer to back off.  The employer’s proposals would be just that: proposals to be bargained.  However, since YUFA does not have a successful strike vote in its back pocket, come August the employer can simply inform the faculty that it is implementing its proposals unilaterally (just like Windsor did). Any resistance in the form of a strike (including a work-to-rule) without a successful strike vote having been taken would be unlawful and expose the professors to discipline or even termination.

So that is where things stand at the moment (July 17). We’ll keep a close eye on developments in York collective bargaining over the coming weeks.  YUFA has now planned to take a strike vote. This is the only sensible response to York’s provocative rush to reach a lawful lockout date. It is then up to the professors to decide if they want to hand the employer the authority to unilaterally impose contract terms, or whether they want to retain some ability to resist and insist that the parties work out a negotiated settlement. There’s still lots of time to reach a good settlement for all parties involved. But the clock is ticking.