McGill law professors stage one-day strike to spur productive negotiations

“It is disheartening to see an institution that has always told us that we’re all colleagues and then to treat us in this manner but I still have a measured degree of optimism that things will get better,” said Evan Fox-Decent, McGill law professor and AMPL’s president. “We’re only going to prevail because our colleagues are determined and are taking strike action, which eventually I think is going to produce adequate pressure for the university to deal with us reasonably. But if we get nothing back from McGill, we’ll have to seriously consider using more strike days.”

David Robinson, the executive director of the Canadian Association of University Teachers (CAUT), said he is not surprised that McGill’s law professors decided to strike because there appears to be “a lot of surface” bargaining. “It’s surprising for me that the situation got to the point where fairly conservative professors feel the only way that they can have a voice is through a union,” said Robinson. “I was hoping that the Quebec Labour Tribunal decision would have encouraged the administration to sit down and negotiate in good faith. But I wasn’t surprised when AMPL announced they were having to take strike action, because I know that for several months they’ve been quite frustrated by the process.”

CAUT, an organization representing 72,000 members of some 125 universities and colleges across Canada, is providing McGill’s law professors with collective bargaining advice, and “anything that helps them to deal with any of the legal issues that McGill has thrown at them,” added Robinson.

Madeleine Pastinelli, the head of Quebec Federation of University Teachers (FQPPU), made up of 19 unions and associations, representing 8,250 professors at Quebec universities, said that it is “quite astonishing” to see a university administration behave in the same way as private companies known for their “radically” anti-union stance. “McGill University has clearly done everything in its power to try to challenge the union certification,” said Pastinelli. “Now they’re trying to drag out the process and the negotiations.” The FQPPU too is providing the law professors’ bargaining unit with support, including communications know-how, financial backing and strategic advice.

An unnamed spokesperson at McGill said that the university will not make any comments regarding the current agreement discussions and “will let the pending negotiation run its course.”

The Quebec Administrative Labour Tribunal, after a longer than expected legal battle, certified in November 2022 the Association as the bargaining unit representing the McGill’s Faculty of Law tenured and tenure-track professors, a first for professors in the university’s history. The overwhelming majority of Canadian professors are unionized, noted Robinson.

Quebec labour board adjudicator Jean-François Seguin held that the AMPL could follow in the footsteps of the Université de Sherbrooke and York University and establish a bargaining unit that represents only their faculty. In Association of McGill Professors of Law (AMPL) / Association McGillienne des professeur.e.s de droit (AMPD) c. Université McGill, 2022 QCTAT 5216, Seguin found that the AMPL met under the so-called greenfield context, or in workplaces where there are no other bargaining units, every single one of the five legal criteria to be accredited as a union under the provincial Labour Code. Under Quebec case law, would-be bargaining units must demonstrate that there is a community of interests, a will of employees, that they are bound geographically or organizationally independent, and that its entity would not harm industrial peace.

McGill however is seeking a judicial review of the Quebec labour board’s decision before Quebec Superior Court, a point of contention between the two parties. While the university could have asked Quebec Superior Court for a stay of the decision when they filed their judicial review, it did not, noted Finn Makela, a labour law professor at the Université de Sherbrooke and vice-president of FQPPU. As a result, added Makela, the labour board’s decision is in force, and McGill has a legal obligation to bargain. It is “conceivable” that McGill, as is sometimes the case with other employers contesting union certification, that they are “slow pedalling” bargaining in the hope that the judicial review will be granted, said Makela.

NEGOTIATIONS STALLED

The new union is hoping to arrest a growing inclination towards centralization at the university, safeguard the collegial governance at the faculty level, and negotiate a collective agreement that will lead to better working conditions and security, said Fox-Decent. The AMPL laid out a “comprehensive” proposal dealing with 32 conditions, 17 of which have been settled over the past year of negotiations. But key provisions, such as faculty working conditions dealing with appointments and reappointments, promotions and tenure, terms and conditions of employment, have yet to be resolved. Others dealing with the governance of the faculty, like the appointment and reappointment of the dean and the rights and privileges of the Association, too have to be settled. Salary and employee benefits have also yet to be reconciled, said Fox-Decent.

But to the frustration of the AMPL negotiations have stalled and are proceeding at a snail’s pace. The university, claims AMPL, wants to set aside only two and a half days of negotiations between now and the end of the semester, in spite of repeated offers by the union to work early, through evenings and on weekends if necessary in a bid to make progress. More vexing is the university’s stance that it has “unbridled discretion” to change conditions at their whim, said Fox-Decent.

“We’re just at the point of trying to get them to agree that whatever we do agree to is going to be part of a collective agreement, because if we don’t get that in place, that issue is going to resurface when we get to work duties and work conditions,” said Fox-Decent. “They still keep sticking to their guns that they have to have unilateral authority to change the terms of our agreement after we’ve signed it. We just can’t accept that.”

McGill’s stance that they have the power as an employer to retain ultimate decision-making power over the “rules of the game” is “beyond the pale,” remarked Makela. “McGill has been consistently insisting that the incorporation of existing personnel regulations regarding faculty only be included in the collective agreement, if they are followed by the phrase, ‘as amended from time to time,’” noted Makela, FQPPU’s liaison and strategic adviser to the AMPL. “That’s just completely inimical to the whole idea of collective bargaining, which is to establish a set of mutually agreed-upon rules that will govern the workplace relationship.”

Employers who assert that they have the unilateral authority to change the terms of an employment agreement risk being admonished by the courts for engaging in bad faith bargaining, pointed out legal experts. The Quebec Court of Appeal last year castigated an employer that wanted to be given the right, “at its sole discretion,” to unilaterally set major areas of employees’ working conditions “on which no dispute could be raised.” In _Brandt Tractor Ltd. c. Syndicat national des employés de garage du Québec inc._, 2023 QCCA 471, the Appeal Court held that employers are not precluded from negotiating the scope of its management power by attempting to obtain, through negotiation, terms and conditions that will facilitate its exercise. “However, it cannot appropriate an exclusive right that denies the union’s power of representation, that indirectly interferes in its affairs and that, in any event, runs counter to the underlying principles of labour law, which require it to bargain in good faith,” said Appeal Court Justice Guy Gagnon in a unanimous decision.

MORE UNIONS AT McGILL?

Fox-Decent believes McGill has decided to play hardball in a bid to discourage other faculties from attempting to unionize. If that’s the case, it’s not proving to be successful, he added. McGill’s Faculty of Education is following AMPL’s footsteps. The Association of McGill Professors of Education, established in July 2023, applied for certification before Quebec’s Labour Board. Other faculties at the university are apparently at different stages of organizing, said Makela. One “very large faculty” apparently is going to be filing for certification “quite” soon, added Fox-Decent.

Pastinelli too suspects that while McGill law professors are negotiating their own collective agreement, there are in fact broader issues at play and at stake. The university administration has “clearly understood” that other faculties may follow suit and apply for certification and in turn have demands that are likely to be aligned with the terms and conditions negotiated in AMPL’s collective agreement, said Pastinelli. “This certainly explains why things are being dragged out and why the way the administration is contesting” AMPL’s union certification.

Makela goes even further. “What’s interesting about this is that, and it’s to the credit of the law professors, this is to me a clear case where the union could win in litigation on the bad faith bargaining of the employer,” said Makela. “But the message it would send to the other people who are organizing unions at McGill is, this is what you get when you form a union. More litigation, more time, and more resources rather than engaging in a co-operative relationship. So, it’s almost as though McGill is goading them into suing because they’re so clearly beyond the fair.”

While McGill law professors have not taken the bait, their union’s playbook is limited. Quebec labour can use strategies that highlight and voice their displeasure through visual means such as wearing buttons or t-shirts but so long as it does not affect the ordinary course of business. Unlike in the rest of the country, with the possible exception of British Columbia, it is illegal under s. 108 of the Quebec _Labour Code_ for bargaining units to engage in pressure tactics such as work-to-rule campaigns, call in sick on the same day, refuse to do things that are outside of their normal duties or, in the case of academics and teachers, take their time to mark exams, explained Makela. In other Canadian jurisdictions, unions will often slowly escalate pressure tactics, with strikes as a last resort. In Quebec however there’s a history and practice of voting individual days of rotating strikes because it is the only legal way to disrupt business. “All of the things that you would see as ramping up pressure tactics in other jurisdictions are illegal in Quebec,” said Makela. “So in Quebec, a strike is like a light switch. It’s either on or off. There’s no middle ground.”

Fox-Decent hopes that AMPL’s one-day strike sent a strong message and that it will spur the administration to hold constructive negotiations. “We’re not asking for the moon,” said Fox-Decent. “We just want a basic collective agreement akin to the collective agreement you see in other universities.”