The Unionization Question

May 2013

Introduction:

At the SFUFA General Meeting in March 2013, members passed a motion directing the Faculty Association Executive to explore the potential for unionization for further discussion at the Fall General meeting in October. Under our constitution, motions from the floor are allowed, and any motion other than one amending the bylaws or otherwise restricted by the Societies Act is passed by a simple majority.

The Faculty Association Executive is not taking a position on this issue, believing that such a decision rests solely with members. The following is provided to give members some background on the unionization question which we hope will help you become aware of the central issues and provide ample notice that this question will be on the agenda in October – we certainly do not want a vote on such an important issue to either pass or fail because members were not aware it was to be discussed.

We intend to hold an event on the afternoon of May 28th including a panel discussion on unionization, with member-speakers on both sides of the question. We anticipate further events in the coming months to continue the discussion.

At the Fall General Meeting, likely sometime in October of this year, we will provide a report back on what we have heard, and members may elect to either dismiss unionization, move forward toward unionization, or carry the discussion further. We cannot predict at this time what if any decisions might be reached at that meeting, but believe it is important that all members understand as early as possible that this issue is squarely on the agenda for discussion in the Fall, and all those with opinions on the matter are strongly encouraged to attend.

The Growing Trend to Faculty Unionization:

The vast majority of Canadian faculty associations are unionized in all provinces; only in Alberta is that not the case as that province explicitly disallows faculty unionization and provides instead a legislative framework for faculty representation. In British Columbia, faculty are unionized at all public post secondary institutions except SFU, Uvic and UNBC. 
Both the Uvic and UNBC associations, however, have indicated that they are actively considering unionization at this time, and the UVic Faculty Association in particular expects to undertake a formal union drive in the next academic year.

The differences between unionized and non-unionized associations are minimal in certain areas of our work, significant in others. Unionization is not a decision that any association takes lightly and presents as many challenges as advantages; there is no question, however, that the trend in Canadian universities is overwhelmingly toward unionization, and it appears that trend is rapidly gaining currency among our partner organizations here in B.C.

Our Current Situation:


Under the terms of our Framework Agreement, SFUFA is recognized by the SFU administration as the sole collective bargaining agent for faculty members, and enjoys legal status as our members’ official representative body. This means that for purposes of salaries and economic benefits, and certain other policies that are mutually-recognized as ‘negotiated’, SFUFA and SFUFA alone may enter agreements with the university to amend salaries or conditions of employment for members. The university may not enter into agreement on those issues with anyone but SFUFA, or recognize any other employment representative of our members. Likewise, SFUFA has the right to collect dues, and all employees in our member groups are deemed SFUFA members unless the individual explicitly opts out (paying the dues instead to an eligible organization). Finally, as part of its right to bargain and collect member dues, SFUFA has a legal obligation to represent its members in good faith in all employment-related matters which fall under its jurisdiction. To do so, we have a number of means at our disposal from informal dispute resolution to final and binding arbitration, and members may hold us to account (both politically and legally) if we fail to adequately discharge our duty.

What Unionization Means:

In all of the above respects, SFUFA resembles a legally-recognized trade union. There are, however, differences, the following being the most significant.

a) a trade union’s legal status is granted under the authority of the BC Labour Relations Code and disputes are resolved under the auspices of the Labour Relations Board, which has legal oversight with regard to ‘the interpretation, application or alleged violation of a collective agreement’. Under the current system here at SFU, our legal status is essentially a grant of the university, and disputes are to be ultimately resolved by the courts unless an alternative process has been agreed. (We do typically maintain an agreement with the university to rely on LRB-associated arbitrators rather than the courts, as they are more familiar with employment relationships than the courts might be.)

b) our scope of bargaining is limited to those areas SFU has formally agreed to allow us to negotiate. That is, a trade union represents its members in all employment-related matters (unless restricted by statute), and has sole bargaining agent status on a more comprehensive basis than do we. While we may bargain policies that the university has conceded are negotiable, all other policies and procedures are solely discretionary. For example, matters of salary, most benefits, and many conditions of appointment (workload, tenure and promotion processes etc.) are indeed negotiated policies; significant matters, though, are not accepted as ‘negotiable’ – many policies related to consultation, leaves of absence, and use of non-SFUFA members to perform what is typically faculty work, for example, may not be subject to negotiations.

In terms of both process and substance, then, there are differences between unionized and non-unionized associations. In general, unionization expands rather than shrinks the association’s reach and provides it a greater ability to advocate for members – in scope of bargaining, in the ability to represent members in more areas of potential dispute, and in legal remedies and avenues of appeal. The cost, of course, is the unionization process, which can be lengthy and potentially divisive, and the increased legal responsibilities the association incurs with unionization.

Processes of Unionization – certification vs voluntary recognition:

The most common path to unionization is what is called ‘certification’ – in this process, the association collects signatures or ‘cards’ from members indicating their desire to unionize. We would need to collect signed cards from 45% of eligible employees in order to ask the Labour Relations Board to hold a vote. That vote would then require that a majority of ballots were cast in favour of unionization. If the vote passed, we would be ‘certified’ as a union under the Labour Code, and would then serve notice to the university to begin bargaining a first true collective agreement.

A less common route is ‘voluntary recognition’. Here, there is not necessarily any collection of cards, and unionization occurs because the employer willingly agrees to recognize the association as a union. There does not need to be a certification vote overseen by the LRB, but some process of ratification in which members clearly indicate their consent to unionization is required.

The UBC Faculty Association is the closest example of voluntary recognition of a faculty association for our purposes. As a result of a union drive to organize sessional faculty, UBC agreed to recognize the FA as a whole as a union; the university managed to avoid a new union emerging on campus to represent sessional faculty, and the faculty and librarians became unionized. UBCFA and the university arranged to work slowly over a couple of years to transform the existing Framework Agreement and policies into a collective agreement, and agreed, too, to retain binding arbitration instead of using strikes or lockouts to resolve any breakdowns in bargaining (discussed in more detail below).

Certification and voluntary recognition achieve the same thing – formalization of the association as a union under the BC Labour Code, with all the rights and responsibilities that designation provides. There is one substantive difference – a certified trade union can later approach the LRB to include new employee groups in its bargaining unit; a voluntarily recognized union generally cannot, as its union recognition arose out of explicit agreement with the employer to cover clearly designated groups and those groups alone.

Both certification and voluntary recognition, then, are options we could consider. While at SFU there is currently no particular reason the university would need to voluntarily recognize SFUFA, it could be in their interest to do so, particularly if voluntary recognition might mean the maintenance of binding arbitration rather than the right to strike. Such an arrangement would limit our ability to take job action, but would achieve unionization and significantly strengthen SFUFA without a drawn-out certification campaign. It might also ease concerns members may have about strike action.

Benefits and Risks of Unionization:

Leaving aside ideological commitments for or against unions in general, unionization carries both benefits and risks to faculty members and to SFUFA as an organization. As in all decisions, individuals will likely decide to vote for or against unionization based on where their own cost-benefit assessment falls. The following are some of the key areas that people might consider:

Association-Administrative Relations:

Pros: While SFUFA has highly collegial relationships with the university administration at present, the association is most certainly a ‘junior partner’ – provided the opportunity to meet and talk and raise questions, but all-too-easily ignored in substantive terms. Unionization would strengthen the mandate of the association politically and achieve an improved balance of power between SFUFA and the administration.

Cons: The union-employer relationship is different than that we currently have, and we could experience a certain amount of hardening of positions at least in the shorter term while both sides adjust to the new arrangement. The ability to get the ear of the president for a quiet word, to emphasize relations of goodwill over relations of legal status and rights – these have their limitations, but should certainly not be considered insignificant.

Faculty Voice:

Pro: Unionization would significantly strengthen the mandate of SFUFA and strengthen, too, its ability to legally defend faculty interests. It would provide a strong signal that members expect to be actively consulted, and allow the association to challenge unilateral decisions that adversely affect faculty but are not currently within our scope of bargaining. In an era in which the mechanisms of collegial governance seem to be weakening, unionization can be an effective method of protecting a democratic collective voice for members.

Con: Any mechanism for a collective voice can create the illusion of consensus and alienate divergent opinions. Faculty and academic staff do not take unanimous positions on many issues, and there will no doubt be any number of issues on which an individual member’s views are not consistent with the position taken by the union. This is, of course, already the case, unionization or no. However, the strengthened mandate unionization provides may exacerbate these kinds of differences.

Negotiation and bargaining:

Pros: Unionization widens the scope of bargaining and lessens the unilateral power of the administration in a number of ways. It would bring together economic bargaining and discussions about policies and practices, allowing the association to bargain an overall agreement with greater consistency and ensuring that process and policy matters are included in each negotiating round.

Cons: As unionization limits the unilateral power of the administration, it also can cause increased resistance to change and can heighten administrative concern about matters of precedent and long-term legal implications of agreements. That is, the flexibility management holds by virtue of policy can at times make it easier to achieve particular gains and can encourage new practices to be rolled out on a trial basis.

Financial matters:

Pros: As a general rule, unionized workers earn more than their non-unionized counterparts, and have greater equity in salaries and benefits as well. It is worth bearing in mind, however, that given both the peculiarities of the university sector and the role of the provincial government in constraining wages in the public sector, salary increases in BC in the foreseeable future cannot be presumed to follow the same pattern as they have historically.

Cons: Unionized associations have greater responsibilities and represent members in a wider array of matters, with the result that costs to the association can increase. A dues increase is not a necessary outcome – i.e. UBCFA has a similar dues rate to ours, and is a unionized association – but costs of representation could rise, particularly in the shorter term while both parties adjust to a unionized environment.

Flexibility:

Pros: The expansion of the scope of bargaining would allow SFUFA to limit SFU’s arbitrary exercise of authority in a number of areas. Much of policy is now entirely controlled by the university, and even where consultation occurs, the incorporation of faculty feedback is often entirely discretionary. A more robust collective bargaining arrangement would certainly constrain the unilateral power of the university administration.

Cons: Unionization does not mean that rules and regulations must necessarily interfere with the decentralization and collegial decision-making the university requires. However, agreements do bind faculty members as much as they bind the university, and departments and individuals would almost certainly experience some level of constraint in their own flexibility.

The above are just a few of the trade-offs members and the association need to consider in deciding whether to proceed with unionization. The shift need not be life-changing, and in many universities much carries on as before. However, there would be changes – generally changes that would strengthen the association, but at the cost of a flexibility which benefits not only the administration but academic units and individual members as well. It is, then, for many not an easy choice to make; we can only encourage members to consider carefully all sides of the issue, to weigh the benefits and costs, and to make reasonable and informed decisions on how to proceed.

Could We Lose Our Existing Protections?

One concern of unionization is the possible loss of existing provisions that we enjoy. For example, the language on academic freedom in place at SFU is one of the strongest provisions in the country; might unionization require us to start from scratch and jeopardize such protections? The answer is not as simple as yes or no.

The potential to lose existing provisions does of course exist anytime an agreement is opened for negotiation. But of particular concern at SFU is a provision in our Framework Agreement which states that the Agreement “shall lapse if and when the Faculty Association obtains certification under the provisions of the labour legislation of the Province of British Columbia”. This suggests that unionization might result in the immediate suspension of all existing protections.

SFUFA has sought legal advice on this question specifically, and understands that the above language certainly does not mean all is lost, and may in fact be contrary to the law. The Labour Code includes provisions that come into effect immediately when an organization begins a certification process – specifically, the Code stipulates that no change in terms and conditions of employment can be imposed while the certification process is pending (section 32[1]) nor can any such changes be introduced following certification for either four months or the signing of a collective agreement, whichever comes first (section 45[1b]. What this means is that both during the process of certification and for four months afterwards, all current conditions would in fact be protected by law unless a collective agreement was signed in that period.

Certification, then, does not mean the elimination of current protections, and the law would provide a period of four months for negotiations before it would be legally possible for any change to terms and conditions to be imposed. If, however, we failed to negotiate an agreement in that time, the university could be in a position to unilaterally alter its policies.

STRIKE! The Big Question:

Say unionization and people hear ‘strike’. There is no question that the strike and the union are firmly connected in public consciousness. However, while most unions have the right to strike, and while each year we hear about strikes across the country and across sectors, two things are worth noting very clearly:

1. unionization does NOT necessarily mean adopting the strike as a tool, and many unions do in fact rely on binding arbitration as their dispute resolution mechanism;
2. even where unions do have the right to strike, strikes are rare occurrences overall, and no strike ever begins without the express and explicit decision of the members themselves.

The discussion about unionization for SFU faculty members is NOT a discussion about the right to strike. That is a secondary question that would be separately decided were SFUFA to unionize. Members would have to ratify a collective agreement that included provisions for dispute resolution, and could opt to take the right to strike or to maintain binding arbitration. At UBC, for example, the Faculty Association has explicitly chosen to retain arbitration and to prohibit strikes and lockouts, and there is no reason members here could not do the same.

Strikes can be an effective tool, without question; and for many, the right to strike is seen as the most fundamental benefit of unionization. However, unions can and do rely on arbitration instead, achieving the benefits of unionization while avoiding the conflict and division that many people associate with strike action.

Next Steps:

SFUFA has been directed by its members to explore unionization and to report on the various issues the question of unionization raises. Over the next several months, we will be working to share information with you and identify opportunities for discussion and debate in anticipation of our report to the Fall General Meeting.

This memo has set out just a few of the factors you might consider. We welcome any questions, and will endeavour to answer as fairly and objectively as we can, recognizing the diversity of opinion that exists already, and recognizing, too, that there are good reasons to both support or oppose this step. Ultimately the Executive Committee believes this is a question that can be answered only by the members of SFUFA themselves, and while individual executive members have individual opinions, the association as an organization will neither speak in favour of nor against the idea at this time, but will await further direction from the membership and act accordingly.

Further information on unionization, and on events and opportunities to discuss the matter, will be provided as it becomes available.