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Collision course: collective bargaining and university governance

An excerpt from University Leadership and Public Policy in the Twenty-First Century: A President’s Perspective.

By PETER MACKINNON | FEB 11 2015

It was February in the university’s centennial year of 2007 and I was out of the country but had reached the provost by phone. He was on his way into Deans’ Council and wanted to know what message I had for the deans on the immediate prospect of a faculty strike. Collective bargaining had become protracted, and the faculty union had an ambitious agenda that included workloads, faculty complement, and representation on the board of governors. In addition, I knew that the union leadership was ill-disposed towards the direction of the university in recent years. It was prepared to utilize negotiations and possible job action as a vehicle through which to express opposition, in anticipation that it might destabilize the institution and force change, in direction and possibly university leadership.

I said to the provost that he could report to the deans that I shared their concerns about the prospects for a strike. I had lived through them and was familiar with the tension and rancour they bring, and the damage they can do. But there were worse things, I said, and I was not prepared to see lasting damage caused to the university by bargaining on the matters on the union’s agenda. I asked the provost to inform the deans that I would never authorize negotiations on workload, faculty complement and governance, and if a strike was the price to be paid, it was unavoidable.

Despite differences in size, mission, resources and quality, there are organizational similarities among universities that attest to their common origins, and in particular the idea that universities are communities that govern themselves. The architecture of self-government typically includes separate bodies empowered by statute, charter or other authority to address academic and financial matters. Nomenclature varies, but in Canada, senate and board of governors are common names for these bodies and will be used here.

There are sound reasons for this division of powers. Senates are made up of members of the academic community – faculty, students and academic administration – and have plenary authority for establishing and super-vising academic programs and activities. Ranging in size from 25 members to more than 200, with an average of 76, these are people who are familiar with universities as academic communities and who are prepared to commit time and effort to their governance, and they are appropriately entrusted with their academic oversight. Boards of governors are empowered to supervise and decide on university finances, business and property, and their membership includes (or should include) members who can bring the requisite expertise and experience to the table. […]

Consider, now, the complexity added to governance and collegial management by collective bargaining regimes. The importation from the industrial world of a model of employer-employee relations that would have been seen at one time as anathema to the idea of a community of scholars is a development of fundamental importance. It encroaches on governance and collegial management and challenges their authority. Its full impact is not yet understood.

There is irony in the fact that institutions that prize their autonomy would adopt an external model that attenuates their freedom. Union status does not come without strings attached; there are many obligations rooted in labour legislation that now have become part of the body of law and policy embedded in university affairs. In addition, faculty unions may affiliate with larger labour organizations in ways that involve reciprocal obligations.

Not all universities have imported this model into their internal affairs. A review of international rankings reveals that top-ranked institutions do not have faculty unions. Nor do the Canadian universities that feature most prominently in these rankings. The University of Toronto Faculty Association is the professional organization of the university’s faculty and staff; the non-unionized McGill Association of University Teachers “functions within the collegial framework of academic life at McGill”; the University of British Columbia Faculty Association is a registered non-profit society incorporated under the province’s Society Act; the McMaster University Faculty Association is a professional association; the University of Alberta has an Association of Academic Staff that derives its authority from the province’s Post Secondary Learning Act. They have some of the same representative obligations in negotiating salaries and benefits, and representing members, as their unionized counterparts in other Canadian universities, but these obligations and their concomitant behaviours are not shaped by external labour laws and trade union cultures. They see themselves as professional associations, and the legal and cultural divide between them and faculty associations that are certified trade unions is wide.

There are many dimensions to the organization of faculty in unions, but two in particular merit early mention. First, in gaining union status, professors forfeit any claim to being a self-governing profession. They confirm their status as employees, and an employer–employee relationship is different – in law and in fact – from other workplace relationships. Second, the most important and prominent feature of this relationship is the mutual obligation to engage in collective bargaining, an activity that not only is externally regulated but one that can be an uneasy fit with proclaimed ideals of universities. “Collective bargaining is not just another form of the search for truth in the university setting. It is about power, about one side having it and the other wanting some. And it is not decided by logic or research or even passion. It is decided by the mobilization and exercise of strength.” (J.R. Miller, Vox 1, 1987.)

Power struggles are very different from debates about competing claims to truth, but the latter is at the heart of the academic mission. Whether in the context of commercial opportunities or other temptations, universities rightly claim that the integrity of the academy must be protected. Universities require trust and respect, and if they are seen to bend in their mission before the influence of money or other extraneous factors, they risk losing both, because they have compromised the evidence-based search for truth for which they claim a unique status in our society. But what of institutional behaviours that favour power over truth? In labour strife, as in war, the first casualty is truth, and there is no exception for universities. Slogans, spin, and often the demonization of opponents move to centre stage, and the performance is public. In the early days of any faculty strike in the country, and regardless of local issues, the Canadian Association of University Teachers (CAUT) and its faculty union members can be counted on to issue statements of solidarity with the striking union. Careful observers can see that adherence to the values of truth, reason, and evidence-based debate has yielded to a greater interest in winning a power struggle. This is seen as hypocrisy, and rightly so.

The problem for Canadian universities is that the power struggle is expanding in scope. CAUT challenges historical governance arrangements on the basis that collective bargaining should be the process by which governance bodies are regulated. Its policy statement on the subject states, “The Board and Senate should operate within the context of procedures and rules set out in legislation constituting the institution and in collective agreements negotiated between the institution and its academic staff” (CAUT Policy Statement on Governance, 2008).

Legislation does little more than provide for a board and senate and assign financial and academic oversight to them. According to this policy statement, the process for deciding how this oversight would be exercised should be collective bargaining. It is to draw a very long bow to suggest that the terms and conditions of employment, which are the normal business of collective bargaining, include how boards and senates should do the jobs assigned to them by the legislature. The policy statement is clearly a claim for faculty unions to have a role that extends beyond terms of employment to governance. And the role for which the claim is made is not a modest one. In the first instance it would subject the bylaws, rules and regulations now made by boards and senates themselves to review through the collective bargaining process. It has the potential to go further and to advance a superintending role for faculty unions in governance generally. The origins of this claim lie in the CAUT view that senates have failed, not simply that they have weaknesses or are not living up to their potential, and the way forward is to recognize that collective bargaining is, and has proven to be, the best and most reliable way to secure the proper academic staff role in academic decision making.

This means that for CAUT the role for collective bargaining in academic matters is potentially without limit. “Because academic staff are the effective agents for the execution of the research and educational functions of the academy our working environment and our terms and conditions of employment are inseparable from academic policies and objectives. Academic staff have a legal entitlement to engage in the collective bargaining of all their terms and conditions of employment.”
On this view, terms and conditions of employment include what legislatures have expressly entrusted to senates. The line in the sand is clear. A struggle of fundamental importance to the future of our universities is underway. […]

Collective bargaining is about working out an employment contract. It is not about identifying the best interests of the university; nor is it the relative truth about the claims of either union or management. It is about the give and take, the push and pull, and the concessions sought and made to reach an agreement. This is not a forum in which to introduce the additional task of negotiating governance. The opposite is the case: it is a forum to be avoided in the interest of good governance.

Governments should make it clear to public universities with faculty unions that they will not tolerate encroachment through collective bargaining upon governance arrangements set out in legislation or charters. These universities should be reminded that their self-governance is in the public interest, and that governments will intervene to protect that interest if legislative authority is undermined or compromised by collective bargaining. Indeed the time may have come for governments to consider a legislative framework that delineates the boundaries between the two. This framework would emphasize that “terms and conditions of employment” open to collective bargaining must be construed so as to leave unhindered the legislature’s prerogative to provide for the statutory authority of boards, senates and their responsible officers. Such a framework should pay particular attention to the definition of academic matters that ought to be within the purview of academic senates. In addition to approval and oversight of academic programs, oversight of the standards, rules and procedures for awarding tenure and promotion should remain squarely in the purview of the governing bodies.

This is a shortened version of the original text, excerpted from University Leadership and Public Policy in the Twenty-First Century: A President’s Perspective, reprinted by permission of University of Toronto Press, 2014. Professor MacKinnon is president emeritus of the University of Saskatchewan and served as chair of the Association of Universities and Colleges of Canada from 2003 to 2005.

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  1. Noel Roy / February 11, 2015 at 10:05 pm

    I’ve been a faculty member in Canada for over 45 years, and I’ve had a front row seat in the process professor McKinnon describes. Contrary to what he suggests, the main driver imposing the industrial model on Canadian universities has not been faculty unions, but the universities themselves –.somewhat blissfully unaware that the industrial model entails unions. That may not have been the best possible outcome, but it is what we have. Deal with it.

  2. David Seljak / February 11, 2015 at 10:12 pm

    In Professor MacKinnon’s make-believe world, faculty reduce THEMSELVES to the status of employees and violate the norms of collegiality as well as the principles of self-governance and “the free exchange of ideas.” Why? They have made an ideological commitment to unionization, commitments spread to gullible faculty by the Canadian Association of University Teachers (CAUT).

    I’ve studied and worked in five universities, and I’ve never seen a place in which the majority of faculty aggressively seek out unionization. Like in the case at my own institution, unionization comes as a last resort, a response to an autocratic university administration that was backed up by a board dedicated to importing a corporate model of governance and reducing faculty to the status of employees. In our case it was the president and the board that undermined the “free exchange of ideas,” the principles of collegiality, and the mechanisms of self-governance.

    In Professor MacKinnon’s world, administrations and boards never exercise power arbitrarily or unfairly. They never shut down reasonable debate. They never violate the principles of collegiality. So, Professor MacKinnon never asks, what can faculty do when the administration and the board import corporate-style culture of management, claim absolute final decision-making power over the university, rename the President the “CEO,” and reduce faculty to the status of employees?

    Answer: they unionize.

    And then they fight back (yes, they exercise power) in order to RESTORE to the university those essential features outlined so well by Professor MacKinnon.

  3. Megan Stitt / February 12, 2015 at 12:35 pm

    Mr. MacKinnon has lived through the damage a strike can do. He has long experience of university life and administration. Yet the model he describes — of self-governing collegiality — seems rooted in a medieval vision. It does not address today’s model, which is more bureaucratic than in the past, and where even top universities such as U of T are moving toward lines of efficient hierarchy.

    I am dumbfounded by his polarization: with unions seeking power, on one side, and university leaders (and non-unionized academics) seeking truth on the other. I have only known academics who seek truth; who do not want to feel at risk if they speak out against changes that directly affect their work; who do not want to feel like an expendable employee. If some resort to “external labour laws” (a bad thing?) it may be out of fear or disillusionment.

    Do the top universities in Canada really operate on “trust and respect”? Sadly, I doubt it. The unions are not driving the change, Mr. MacKinnon.

    • David Seljak / February 13, 2015 at 9:40 am

      Nicely said, Megan. Much better than my hastily written post. It is the simplistic dualism of Professor MacKinnon’s vision that I found offensive. Do faculty unions ever misbehave? Certainly. Do they sometimes confuse truth and goodness with their own self-interest? What organization doesn’t?

      However, it is boards and administrations that bring unions to campus–not faculty. During our union drive, perhaps the most reluctant labour movement in history, we worried about signing up members. We were told that the president was the best recruiter for the union. My experience has been that, generally speaking, administrations get the unions they deserve.

      Finally, Prof. MacKinnon’s reference to “external labour laws” made me laugh. They are not “external.” They are the law created by all Ontarians (in our case). These are the same people who chartered my university and set up the governance structures defended so rigorously by Prof. MacKinnon.

      David

      • Megan Stitt / February 13, 2015 at 1:27 pm

        Thank you, David. And I appreciate your mild corrective — I was in danger of glorifying the “workers”, which is at odds with my original indignation, like yours, at the dualism in Prof. MacKinnon’s article. Megan.

  4. Mark Crawford / February 16, 2015 at 11:09 pm

    I actually agree 100% with Peter’s concern about “institutional behaviours that favour power over truth” AND “The importation from the industrial world of a model…. that would have been seen at one time as anathema to the idea of a community of scholars”. THE QUESTION IS: WHY IS HIS CONCERN ABOUT TRADE UNIONS AND NOT ABOUT CORPORATIZATION AND MANAGERIALISM IN UNIVERSITY GOVERNANCE? Is it simply because this particular section of his book is concerned with collective bargaining? Does he redress this imabalance somewhere else in his book? Or has he simply internalized the perspective of a corporate manager/fundraiser? I still haven’t read the whole book, so I will be on the lookout for the answer.
    >

  5. Donald A. Bailey / March 17, 2015 at 7:54 am

    Perhaps little of value can be added to the comments already posted. President MacKinnon has just wiped out the pre-faculty-union history, during which Senates and Boards gradually, but systematically, evolved into the corporate model of university governance, even more often appointing presidents skilled in management rather than in the search for scholarly “truth”. At my university, in the 1970s I was reluctant to unionize and helped draft a sort of mid-way modus vivendi, which hardly lasted two years, because university governance structures had by then made non-unionization suicidal for academic strength and dignity. Unions have their failings, but that doesn’t vitiate our present need for them.
    Is it fair to bring in another aspect of this search for truth? President MacKinnon’s university’s Faculty of Agriculture has long had an external funding arrangement with Monsanto — hardly a paragon of truthful research or public-spirited litigation. And the University of Toronto treated Dr. Nancy Olivieri disgracefully in her struggle to publish negative research about the product for which her funding came. Such considerations may not directly impinge on union issues, but they certainly impugn an administration’s claim to respect truth and collegiality.

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