Universities play a vital role in society and the principles of academic freedom, tenure, equity, and institutional autonomy are foundational to their success. How are these principles defended and strengthened? Through collective bargaining.
Twenty years ago, in his book The Uses of the University, Clark Kerr used the term “multiversity” to describe the gradual emergence of complex, heterogeneous, and diverse institutions of higher education over the last several centuries. These changes were, at least partly, in response to rising societal expectations for universities to achieve broad and diverse goals that went well beyond the core functions of teaching and research.
Universities now function to achieve both individual and public good. For example, beyond providing students with a broad-based education and job-relevant skills, universities typically function as intellectual centres, which preserve and disseminate knowledge; promote national and international development; serve as engines of economic development and producers of qualified labour; are sources of social critique and analysis; and promote social equity and access.1 We cite, as an example, a section of Brock University’s current strategic plan:
Brock University works to enhance the economic, social, cultural and intellectual lives of the communities around us—Niagara, Ontario, Canada and beyond—and to demonstrate the vital ways in which we contribute to the health, well-being and betterment of society in the 21st century.
Collectively, university administrations, staff, and faculty have considerable resources and expertise with which to achieve many of these goals. In this article, we propose that collective bargaining between faculty members and the university administration has an important role in helping the institution realize these objectives and succeed in performing the diverse functions that are part of its modern mandate. The effectiveness of collective bargaining in achieving these goals is rooted both in the bargaining process and in the collective agreement language that results from these negotiations.
What is collective bargaining?
Collective bargaining occurs when a group of employees negotiates as a single entity with their employer. These negotiations encompass salaries, benefits, working conditions, and the working relationship between employers and workers. At universities, negotiations typically also include tenure and promotion, academic freedom, hiring, and the role of faculty in governance. Most workers at Ontario’s universities are unionized, and so collective bargaining is the norm across the university sector. Herein, we propose that the negotiation of these processes enhances a university’s ability to be successful in fulfilling many of its primary functions.
Collective bargaining is conceptualized as a democratic process. Employees typically have a substantive role in bargaining, including participating in the selection of their negotiating team; contributing to and approving the union’s bargaining mandate; and ultimately ratifying the negotiated agreement. To be effective, collective bargaining requires that the employees’ and employer’s participation is independent and autonomous, and that both parties are bargaining in good faith. Human Rights Watch considers collective bargaining a human right and, in Canada, it has been judged by the Supreme Court to be a right protected in the Canadian Charter of Rights and Freedoms.
The positive influence of the collective bargaining process
By engaging in collective bargaining, faculty members and the university administration foster communication, identify concerns, and develop proposals to address those concerns. The negotiation process provides a structure and time frame for interaction and facilitates communications between both parties, resulting in a greater mutual investment in the collective agreement. This process produces solutions to workplace challenges and approaches for achieving the university’s goals that are more creative and innovative than compulsory arbitration.
Collective bargaining is a process in which both employers and employees are active participants. Each typically commits significant time, effort, and resources to reach a settlement. For the union, the success of a bargaining agenda depends on its consistency with the membership’s priorities and local conditions, thus ensuring members’ engagement. A similar consistency is needed on the employer’s side and, as such, both employer and employees have a stake in adhering to any resulting agreement.
Collective bargaining also leads to increased communication and engagement among union members, including exchanges between members, the executive, and the negotiation team. The union typically encourages the active participation of members in setting and approving the union’s bargaining mandate (goals), as well as ratifying the proposed settlement. In doing so, an engaged collective bargaining process may serve to increase member support for both the collective agreement as well as the union itself and its future work.
The Brock University Faculty Association (BUFA) Chief and Deputy Negotiators, for example, hold meetings with all willing departments to talk about possible bargaining priorities in advance of our mandate-setting meeting. Throughout the bargaining process, members are kept informed through regular bargaining bulletins.
For the last two negotiations, BUFA has had a Contract Action Team with representation from across the university. This team has specific goals of maximizing member engagement and creating informal networks to ensure a constant multi-directional flow of communication between BUFA members and their negotiating team. All of these communications serve an educative function for members, as they address issues such as governance, educational quality, academic freedom, health and safety, and equity. These communications also provide valuable feedback for the negotiating team, as members are able to indicate their support for the team, raise concerns, and identify issues about which they would like more information.
Collective bargaining has an important role in helping the university succeed.
Beyond the bargaining period, increased knowledge of workplace issues and institutional challenges has positive value for the university. Therefore, the collective bargaining process may be an effective tool for achieving a variety of university goals.
Advancing the university’s mission through collective agreements
Collective bargaining also tends to result in negotiated collective agreement language that protects key university processes in service of the university’s goals and mission. In Canada, several common types of clauses are found in faculty collective agreements that ensure day-to-day university life unfolds in ways that serve the foundational tenets of the university: academic freedom, tenure, and equity.
Below we provide examples of cases where the negotiated grievance/arbitration process is used to both identify breaches of bargained language regarding academic freedom and tenure by university administrations, and remedy those breaches in service of protecting the rights of faculty members and the important work of the academy. In our discussion of equity provisions, we provide an example of how collectively bargained language can move the university forward in service of its goals. Protecting and promoting these rights serves the mission of the university—that faculty are free to teach, research, and serve, and to do so with job security and with sensitivity to equity and diversity.
At Brock University, the faculty association’s collective agreement defines academic freedom as “the freedom to examine, question, teach, and learn, and it involves the right to investigate, speculate, and comment publicly without deference to prescribed doctrine.” Ensuring such freedom allows faculty and professional librarians to pursue the truth no matter where it may take them, advance learning, and disseminate knowledge. Academic freedom language also protects intramural speech—the ability to criticize the university. Drawing from the collective agreement at Brock, we see that academic freedom “does not require neutrality in expression or attitude. Rather, academic freedom makes commitment possible and may result in strong statements of beliefs and positions.”
Academic freedom allows faculty and professional librarians to pursue the truth no matter where it may take them, advance learning, and disseminate knowledge.
Such protective language was at issue in the York University case involving Professor David Noble. In 2004, Noble distributed a two-page flyer to attendees of a film being shown on campus. The flyer depicted the university as well as several York University Foundation Board members as being pro-Israel. The university responded with a press release that, while not naming Noble directly, condemned the material in the flyer as offensive.
While universities certainly have the right to comment on events on campus, they must proceed with caution. YUFA successfully used the arbitration process to protect both the negotiated academic freedom language and academic freedom as a key right of academics. Academic freedom protects the ability of faculty members to speak publicly about controversial social issues, which furthers the university goal of providing critical social analysis.
Whereas the case above dealt with academic freedom in extramural speech, our next example focuses on the violation of academic freedom in teaching. In December 2015, Michael Persinger, a Professor at Laurentian University, was removed from the classroom after the institution received a student complaint about offensive content in one of his psychology courses. Further, the university set up a dedicated telephone hotline and publicly invited additional complaints against Persinger.
The Laurentian University Faculty Association (LUFA) launched a grievance arguing that the university violated Persinger’s academic freedom rights. In Persinger’s courses, students were introduced to a wide range of words that some might have found offensive. However, introducing such content was a pedagogical tool connected to course material.
The arbitration award found that the university had failed to consider Persinger’s academic freedom rights when they removed him from the classroom and had violated due process. As a result of the award, the university agreed not to “publicly invite complaints against faculty members and will never again utilize a stand-alone telephone number for complaints.” Similar to the York case above, it is because of LUFA’s action, perseverance, and collective agreement with the university that academic freedom was protected both in form and in principle. Sadly, Persinger passed away before the case was resolved.
Tenure as a process intersects with academic freedom, providing security of employment and economic position enabling faculty members to effectively carry out their teaching, research, and service. Tenure processes are complex and generally involve multiple levels of assessment and recommendation, including the candidate’s academic unit, external referees, faculty dean, wider university-level committee, and then a final decision being made by the university’s president or provost (as negotiated in the collective agreement).
In June 2014, Professor Ken Ogata was denied tenure and promotion at York University. YUFA grieved the decision of the university president. At issue were procedural concerns of a nature serious enough to quash the president’s decision (York University v. York University Faculty Association, 2016). For what he considered to be “complicated” cases, the president had created a system of consultation with the provost that was not contemplated in the collective agreement.
In the arbitration award, it notes that the university must follow the language that the two parties negotiated. The arbitrator ordered the decision of the president be quashed but did not weigh in on the academic merits of the faculty member’s dossier, leaving it to the parties to come to an agreement about how to proceed.
The collectively bargained language and the grievance/arbitration mechanism ensure that tenure decisions are made on the basis of fair process rather than being subject to arbitrary, and potentially unfair, administrative decisions. Tenure and good tenure decision-making processes are essential for the university to meet several of its fundamental goals. Such goals include the freedom of pursuing potentially paradigm-shifting research, teaching in ways that challenge students to explore new directions, and providing social analysis that may be critical of established regimes of power.
Tenure and good tenure decision-making processes are essential for the university.
Collective bargaining can also be used as a vehicle to enact change with respect to equity and move the university forward. For example, many faculty associations have bargained employment equity language serving to support the diversification of faculty ranks. Employment equity language can be aspirational, but more concretely, it can outline positive, proactive steps to ensure that unless substantially different, equity candidates shall be hired.
In the 2017 round of bargaining at Brock, the parties agreed to extend the provisions of the employment equity article to lesbian, gay, bisexual, transgender, and queer (LGBTQ) persons. The inclusion of LGBTQ persons in these provisions went further than what we found in other Ontario university collective agreements at the time.
Having robust employment equity language is just one of the tools that can help remove barriers to employment and advance the careers of members of equity-seeking groups. Promoting equity and diversity in faculty ranks not only creates more diverse universities that reflect their communities and the student body, but fosters an environment where individuals with various backgrounds and perspectives can bring forward new ideas to meet both emerging and existing challenges.
The university has a number of important characteristics that make it unique in society, including academic freedom, shared governance, and tenure protections. We propose that collective bargaining is key to protecting these unique attributes of the academy and that it is largely these characteristics that enable the university to achieve its core goals of: creating, preserving, and disseminating knowledge; promoting national and international development; serving as engines of economic development and producers of qualified labour; providing social critique and analysis; and promoting social equity and access.
The communication and engagement aspects of the collective bargaining process comprise one part of this protection. Further protection and promotion of these attributes are afforded by collective agreements, which are the products of collective bargaining. We have also noted how collective bargaining can lead the university toward fulfillment of goals such as equity by negotiating targeted language.
Collective bargaining has become the norm in Ontario universities for addressing workplace issues between faculty members and university administrations in a way that remains sensitive to local contexts and institutional conditions. Collective bargaining bolsters both the institutional autonomy that is so important to the work of our universities and their ability to represent and serve the needs of their communities. However, recent provincial government positions restricting the ability of university administrations to negotiate wages and benefits threatens the ability of universities to engage in effective collective bargaining. We believe that such bargaining is a strength of higher education that is worth defending, both for the success of our universities and the public good.