2005
Report of the Certification Review Committee
Preamble
The Certification Review Committee (CRC) was established following the General Meeting in April 2005. The CRC is, as per the University of Guelph Faculty Association (UGFA) constitution, a committee of Council and subject to Council. The CRC membership consists of Monica Cojocaru (Math & Stats); David Josephy (MCB); and Janet MacInnes (Pathobiology). These individuals were charged with reviewing the pros and cons of certification of the UGFA as part of the review process, the committee consulted with Arthur Hilliker, York University Faculty Association President; Joyce Lorimer, Wilfrid Laurier Faculty Association President; Vicky Smallman, CAUT Organizing and Collective Bargaining Officer, and the UGFA Executive. In addition, the committee considered the Labour Relations Act and material from the University of Western Ontario Faculty Association, CAUT, OCUFA, etc.
Historical Context
The Faculty Association is the only body at the University of Guelph that has consistently defended the rights of the faculty and librarians. The relationship between the University of Guelph administration and UGFA goes back more than 50 years and has, generally speaking, been a good one - both collegial and congenial.
However, in the late 1970’s, the faculty, believing that a formalization of faculty rights and privileges was required, voted to start negotiations on a Special Plan Agreement (SPA). UGFA finally concluded negotiations of theSpecial Plan Agreement, outside of the Labour Relations Act, in 1983 and the faculty voted to approve the document in June 1983. As per Article 2, the intent of the SPA was:
“2.1 - to improve the quality of education and to facilitate the maintenance of high standards of excellence through promotion of collegial relations between members of the faculty, librarians, and the University administration; 2.2 - to create or confirm the minimum rights, privileges, and benefits to the Association; and to create or confirm the concomitant responsibilities of the members of faculty and the librarians to the University; 2.3 - to provide an effective procedure for the determination of salaries and benefits for faculty members and librarians; 2.4 - to formalize the relationship between the University and the Association, to maintain conditions of support for the Association and to provide an orderly procedure for resolution of differences between the parties to this Agreement.”
The SPA formalized relations between the Association and the Administration. The negotiated agreement gave UGFA official status as the representative of faculty and librarians with respect to salaries, benefits, and terms and conditions of employment. Within the SPA, an academic freedom policy was negotiated and a faculty/administration liaison committee (Joint Consultative Committee, JCC) was created to deal with changes to the SPA on an ongoing basis. A procedure and time frame for settlement of grievances as well as mediation for salary and benefits (binding arbitration was rejected by the administration) were also agreed to. The intent of the SPA was to
“embody principles rather than details of specific policies or practices.”
and it is noted in Article 3 that
“there may be instances where current policies of the University including, but not limited to, those found in the Faculty Policies Handbook, and Terms and Conditions of Employment for Professional Librarians and the Research Policies and Information Handbook may appear to be inconsistent with the principles of this Agreement . . . (and ) where cases of disagreement occur, the principles which are established in [the SPA] . . . will have precedence”.
Also under the terms of the SPA Article 10, the Joint Faculty Policy Committee (JFPC) was created. It is stated that
“10.6 The Joint Faculty Policies Committee will be responsible for making recommendations on all matters pertaining to policies, procedures and practices relating to the terms and conditions of employment for faculty, excluding salaries, pensions and insured benefits”
and in Article 10.7
“Any amendments or additions to existing policies, which are subsequently developed by the Joint Faculty Policies Committee, will be sent to each faculty member for comment. After review of such faculty comment, the Committee will make its recommendations to the President of the University and will send a copy to the President of the Association . . . and following consultation with the President of the Association, the President will either forward the recommendations to the Board of Governors or return the recommendations with comments to the Joint Faculty Policies Committee . . .”
Thus it is through the JFPC that most of the “rules and regulations” that affect the workings of key areas of faculty life, such as appointments, disciplinary action, promotion, tenure, TAPSI, etc. are crafted for placement in the Faculty Policy Handbook.
Faculty Associations at Comparable Institutions
Faculty at most universities in Ontario and Canada are certified. In Ontario, both unionized and non-unionized bargaining organizations are called “Faculty Associations”. These Associations are independent organizations not affiliated with national or international unions such as the Steelworkers Union. Considering comparable institutions within the province, Queens University certified in 1995 and the University of Western Ontario in 1998. The University of Ottawa, Windsor, Wilfrid Laurier, and York have been unionized for many years. While these certification processes may not have been without rancour, collegiality was usually re-established quickly. The University of Waterloo had an unsuccessful unionization drive which did not appear to negatively impact their subsequent negotiations. The McMaster Faculty Association remains non-unionized. Over the past 10 years some unionized Associations, such as York, have had strikes.
Certification Process
The first step in certification is to collect signatures from those who wish to certify. The Labour Board requires evidence that at least 40% of eligible employees have signed. Once signatures have been collected from 40% of the eligible group (see below) the cards are submitted with an application to the Labour Board. Signature are confidential and the University does not know who has signed; only how many signatures have been collected. The Board then holds a vote where employees indicate whether or not they wish to certify. If a simple majority of those voting support certification, the Board will recognize the employee group as the certified bargaining agent.
What is the eligible group? That is, who would be included in the bargaining group? This is not entirely straightforward. Clearly, all probationary and tenured faculty and continuing-appointment librarians would be inside the “group”. The status of contractually-limited faculty, Professional/Managerial Staff of the Animal Health Laboratory, among others, is less clear. The Labour Relations Board would have to rule on the appropriateness of the proposed bargaining group. One would anticipate that UGFA would argue that the “group” should include all employees who have duties consistent with those of faculty members and librarians.
Negotiations
The Faculty Association functions under the SPA and Faculty Policy Handbook, documents which exist outside of the Labour Relations Act. According to SPA Article 24, the Faculty Association has the right to negotiate salaries and benefits. In the event that agreement is not reached, or fails to be ratified by the membership, a process of mediation begins. The Board of Governors has the right to accept or reject the settlement proposal, whether negotiated or mediated. If rejected, the Board may impose a settlement unilaterally. Fortunately, this circumstance has never happened.
Arguments for certification
The fundamental difference between certified and non-certified status is that, in the latter case, agreements between UGFA and the University are governed only by the Employment Standards Act and civil law. In the case of certification, the Labour Relations Act becomes the operative legislation. The most important judgement that needs to be made, in a decision regarding possible Certification, is whether the status quo is tolerable.
In disputes with the Administration, the only remedy open to UGFA (other than writing letters and complaining to JCC), is to take civil action. This has never been done. Because the threat of civil litigation by UGFA is so weak, the Administration has - and knows that it has - leeway to disregard existing contractual obligations, whether by neglect, uneven application, or flagrant violation. Several examples can be given such as the requirement that the number of professional staff members performing functions normally assigned to faculty be limited to fifteen (Article 17.5) or the failure of the university to provide copies of the Special Plan Agreement and Faculty Policies Handbook to faculty and librarians. “It is easier to seek forgiveness than to ask permission”. The provision in LTSB (the Long-Term Salary and Benefits agreement) to maintain salaries in at least 5th place within the Ontario system has been allowed to atrophy. The Administration discusses Pension issues with UGFA, but continues to deny that UGFA has a legitimate right and duty to negotiate Pensions. We believe that there are other substantive examples in which, without due process as we understand it, changes to terms and conditions of work are under development.
UGFA also encounters tremendous resistance when it attempts to improve its services to faculty.
The Association has often expressed its desire to meet with short-listed candidates for faculty/ librarian positions, so that we can ensure fair and equitable treatment. The administration has never been willing to provide such an opportunity. More generally, the Administration has been reticent to share information UGFA deems relevant, such as names of new faculty, copies of employment and other contracts,etc.
How badly is UGFA’s role hampered by this situation? That is the key question.
Certification would change the nature of the relationship between the University and the Faculty Association in that it imposes more substantial obligations on both parties. Under the Labour Relations Act, both parties have an obligation to bargain in good faith and to fulfill agreed-upon commitments. Disputes are handled by an arbitrator. UGFA would also have a clear legal obligation to its members. For example, at the present time, UGFA has the option of simply leaving issues and disputes unresolved, because, in the absence of status under the Labour Relations Act, there is no mechanism for faculty members to force resolution. Following certification, individual faculty members would have the right to grieve against UGFA and demand resolution of issues. Certification also provides the means for a more equal relationship with the Administration. For instance, the university has long maintained that UGFA has no legal right to negotiate pensions. UGFA disagrees strongly with this position and certification would guarantee the legal recognition of the Association as the sole bargaining agent for all faculty and librarians. Further, the Labour Relations Act, which would govern our legal status as a certified Association, provides very strong tools for ensuring enforcement of agreement. Without certification, the only legal recourse that UGFA has is to take action through the civil courts. Finally, with certification agreements between the University would be lodged in a single document (i.e. Collective Agreement) rather than multiple documents (Special Plan, Faculty Policy, Librarians Terms & Conditions, LTSB, etc.).
Arguments against certification
Several arguments can be made against certification and the Committee discussed these at length.
Resources: As noted above, Certification involves a much more complex process and imposes greater responsibilities on UGFA. This would necessitate greater resources, both fiscal and human. The current mil rate is 7.5, which is the average for non-certified Associations. The average mil rate for certified Associations in Ontario is 8.96 The mil rate would presumably need to be raised if UGFA were to be certified. There would also be an increased workload for Councillors and Executive members.
Collegiality: Certification might also lead to a less flexible administrative structure. The opportunity to resolve individual grievances by swift, informal, mutually agreed steps might be lost. Certification could also lead to some loss of collegiality with the Administration and between some UGFA members, particularly in the short term. However, experience at other campuses shows that certification need not lead to loss of collegiality.
A non-unionized Association always has the implied threat of Certification: The threat alone is ammunition for the bargaining process. Once executed, this threat vanishes; it is replaced by the threat of strike. Although a strike/ lockout represents a failure of the bargaining process and certainly causes injury to both workers and management, there can be no guarantee that strikes will not occur. Indeed, strikes by Faculty Associations have taken place, from time to time, in Ontario.
Negotiation: In the event of Certification, all existing agreements between Faculty and the University expire, and all aspects of the relationship must be re-negotiated. This includes even time-honoured aspects of the Special Plan. In principle, a risk exists that fundamental rights of Faculty (say, guarantees of Academic Freedom, eligibility for tenure, sabbaticals, 12-month employment contracts, and so on) could have to be surrendered in a negotiation. In practice, however, the negotiating “room” (for both the Association and the University) is severely constrained by competitive forces - terms and conditions would have to be consistent with Ontario norms.
The present JCC and JFPC consultative processes would expire upon Certification. However, replacement consultation processes could be negotiated, and it would very likely be in the interest of both sides to do so.
It is beyond the scope of this committee to draw any conclusions on the information gathered and presented above. Therefore it is for UGFA Executive to assess the current relationship of the Faculty Association with the Administration and, in the light of this report, to decide whether or not to maintain the status quo or launch a certification drive.
If you have any thoughts or comments which you would like to share with the Association, please send them to facassoc@uoguelph.ca