Collective Bargaining for University Faculty: A Legal Perspective

Abstract

Present signs indicate that university faculty are moving slowly, but inexorably, along the road to collective bargaining. Faculty in Quebec appear to be in the vanguard of this movement, but there are signs that faculty in other provinces are following in the same direction. To many, this may be an alarming development, giving rise to a number of fears, such as union organizers disrupting collegial relationships; a closed shop being imposed upon the university community; a highly formalized employment relationship replacing the traditional university-faculty relationship; union solidarity replacing academic excellence; the strike and picket line replacing rational discussion; and government and union interference in the administration of the universities. Such developments would indeed be undesirable, but I submit that they do not necessarily flow from collective bargaining and the present legal structure established to regulate it. To support this statement, it is necessary to describe the more significant features of the existing legal structure regulating collective bargaining. This structure is characterized by 1) positive legal support to encourage employees to organize into collectives with the purpose of providing a countervailing force to match the economic power of the employer; 2) strict limits on the use of economic sanctions by either employees or employers; and 3) a reluctance to interfere in those situations where employers and employees are able to establish a harmonious collective bargaining relationship. Since each of these features plays a key role in shaping our collective bargaining system, further explanation is needed. A primary purpose of existing collective bargaining legislation is to encourage the organization of employees into collectives for the purpose of bargaining with employers. One method of legal assistance is for labour relations legislation to prohibit certain types of employer conduct, including employer statements, that interfere with employee organizations. Perhaps of even greater assistance to trade unions is the status conferred by law where the union has organized a majority of employees in a particular constituency, called the bargaining unit. This status, acquired through a procedure called certification, gives the union exclusive authority to bargain for all employees in the bargaining unit, even though some of these employees may not be members of the union. The law supports this status by prohibiting the employer from bargaining with any other person or organization. The result is that the law gives a seat at the bargaining table to a union that becomes certified as bargaining agent, whether the employer likes it or not. Bargaining status, however, does not carry with it the right to strike at all times. In fact, existing legislation strictly curtails the right to resort to economic sanctions. Labour legisla-