No. 1 FAQs: When the Bargaining Process Breaks Down (posted June 17, corrected August 6)

No. 1 FAQs: When the Bargaining Process Breaks Down (posted June 17, corrected August 6)

The following FAQs provide background information for our members concerning the conciliation, lockout, and strike processes, together with advice for preparedness for either of the latter.


FAQs appear below in this order:

 

 


Are Negotiations Continuing?

Yes. Both sides continue to negotiate in an effort to achieve a collective agreement. Conciliation often works to intensify bargaining as both parties realize they are closer to the brink of lockout or strike. Negotiations usually continue even after lockout or strike.
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What is Conciliation?

Conciliation is the process in which a conciliation officer, appointed by the Ontario Ministry of Labour, acts as an intermediary between the negotiating parties to facilitate communication and settlement. At any point during negotiations, either party may request third-party assistance to reach an agreement. In our case, the Employer applied for conciliation immediately after the June 7 negotiating session. On Friday, June 17, the Ministry appointed a conciliator to assist with negotiations between QUFA and the Employer. Conciliation began on June 27th. The university administration unilaterally ended conciliation on July 22.

Conciliation is non-binding, but provincial law requires at least one meeting with a Conciliator before lockout or strike can occur. The role of the Conciliator is to confer with the parties and endeavour to reach a collective agreement, but he/she has no authority to impose a settlement. It is not the function of the Conciliator to make judgments on the merits and positions of either side; he or she may make suggestions to either or both sides, but these suggestions are not binding and the parties are free to accept or ignore them.

  • If conciliation leads to agreement on a proposed contract, the proposed agreement will be submitted to the bargaining-unit membership and to the Queen’s University Board of Trustees for ratification.
  • If the parties’ differences appear too great for conciliation, the Ministry may issue a no-board report to the parties. This is a report terminating the conciliation process without the appointment of a Conciliation Board. The Conciliator, the Employer, or the Union may demand that this report be issued at any time following the first meeting of the parties with the Conciliator.
  • Following the issuance of a no-board report, the parties must observe a sixteen-day period during which the parties may continue to negotiate. During this period, the terms and conditions of employment are frozen, thus keeping the previous Collective Agreement in effect.

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What is a No-Board Report?

If conciliation fails, the Conciliator requests what is called a no-board report. At any point after the initial meeting with the Conciliator, either of the parties may also unilaterally request a no-board report. If the Conciliator feels he or she cannot effect an agreement or if either side calls for a no-board, the Ministry of Labour will issue a letter stating that a Conciliation Board will not be appointed (the no-board report). Effectively, a no-board report indicates a failure to resolve differences between the two parties. After a no-board report is issued, the parties must observe a sixteen-day period during which terms of employment are frozen but bargaining may continue. On the seventeenth day, lockout or strike is legally possible. A no-board report does not mean lockout or strike will occur; the decision to lockout or strike can be kept in abeyance until any point in time.

The university administration unilaterally requested a no-board on July 22.
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What is a Conciliation Board?
A Conciliation Board is a committee with three members, one from each party to the negotiations and one neutral, that is appointed by the Ministry to extend the conciliation process.  The Conciliation Board is a technical possibility under Ontario labour law but is almost never used since it does not materially change the situation dealt with by the Conciliator.
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What happens to our Collective Agreement during Conciliation?

Our negotiated three-year collective agreement expired at the end of April 2011. We have been working and continue to work to reach a new agreement. As negotiations continue, there is a statutory freeze on existing terms and conditions. In effect, this means that our terms of employment remain the same. If, however, there is a no-board report, seventeen days following that report, the Employer is able to impose unilateral changes to our terms and conditions of employment.
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Is Conciliation the same as Arbitration?

No, conciliation should not be confused with arbitration. Arbitration is a quasi-judicial process in which a third party assesses the parties’ positions and imposes a binding settlement. In order for arbitration to take place, both parties would have to agree to this process.

Until 2008, all Queen’s University-QUFA Collective Agreements included a Dispute Resolution Mechanism (DRM) article providing for arbitration on financial matters.  In 2008, Queen’s Administration refused to renew the DRM, and so the 2008-11 Agreement has no provision for arbitration.
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What is a Lockout?

A lockout occurs when the Employer denies access to the workplace in order to exert pressure on the Union and its members to settle on the Employer’s terms. Employers can legally lock out employees only after conciliation, and then only seventeen days after a no-board report. Lockouts rarely occur in the university sector.

QUFA can only guess at the Administration’s motives for immediately moving to conciliation without having waited for QUFA’s response to its financial package (pensions, benefits, compensation).  Is the Administration’s move strategic? Does it actually want to lock us out? Or does it want to position itself where it can make unilateral changes to existing terms of employment (as it would be free to do seventeen days after a no-board report)?
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What is a Strike?

Legal strike action is the right of unionized workers to withdraw services collectively with the aim of demonstrating their collective concerns and resolve to achieve fair terms of employment. A partial refusal of usual duties, even of ancillary ones (e.g., refusal to turn in marks or to participate in administrative meetings) is considered a strike if it is collectively coordinated. If a Union has not had a successful strike mandate vote, or if the no-board report and the waiting period have not been observed, striking is illegal, and a Union calling a strike without these conditions is subject to penalties.
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Where do we stand currently in relation to the possibility of a lockout or strike?

The following conditions would need to have been met before any chance of a strike or lockout:

First, QUFA, the Employer, or both would need to have applied for conciliation (the Employer did so on June 7);

Second, a Conciliator would need to have been appointed by the Ontario Ministry of Labour (the Ministry did so on June 17) and conciliation dates agreed to (the first meeting with the Conciliator is scheduled for June 27);

Third, there would need to have been at least one conciliation meeting in the attempt to reach an agreement; (The university administration ended conciliation on July 22)

Fourth, the Ministry would need to have issued a no-board report; (The no-board report was issued on July 29) and

Fifth, there would need to have been a sixteen-day period following the no-board (during which negotiations may continue). (Mediation begins on August 11 and is scheduled to go until the 17th day, August 15, 12:01 a.m.)

Given these conditions, four possible actions may follow:

First, the Employer could lock out the employees and/or make unilateral changes to the existing terms of employment.

Second, the QUFA Executive, provided it has a strike mandate from its membership, could call a strike. The Executive would do so only if there were, in its judgment and that of its negotiating team, no other way to reach a fair collective agreement.

Third, the Parties could agree to continue to negotiate until they reach a Collective Agreement.

Fourth, the Parties could mutually agree to send unresolved issues to binding arbitration.
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Do I need to be worried about a possible lockout or strike?

You should be aware that lockout or strike is possible, and you should become familiar with the vocabulary and practice of legal job action. It is important to review the Bargaining Alerts (see http://www.qufa.ca/bargaining/) to be aware of the history of this process and of the issues at stake. Talk with your colleagues. Send questions to QUFA. A strike is unlikely, but it is always important to be financially prudent and plan ahead. Lockout is a rare event at Canadian universities, and in the history of QUFA’s collective bargaining there has never been a strike.
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Why do unions strike?

A strike is not an end in itself, but rather a means to obtaining a fair and equitable collective agreement. Legal strike action does not happen overnight and it is not a decision to be taken lightly. But it is critical for a union to be prepared to strike if absolutely necessary and the mere demonstration of preparedness is an important lever for securing fair and equitable treatment.
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What is a Strike Mandate Vote?

A strike mandate vote is a secret-ballot vote taken among employees belonging to a particular bargaining unit to authorize a strike. If successful, it provides the Union with a strike mandate. A strike vote is NOT a vote to actually call a strike.Rather, it is a vote by the membership to give the Union’s Executive the authority to call a strike if, and when, the Executive concludes that such a step is necessary to reach a fair agreement. A majority vote is sufficient to pass a strike mandate.
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Why vote to strike?

One reason is that the stronger the vote, the less likely a strike may be, because a strong strike mandate vote alerts the employer to the collective strength and resolve of the union membership. A strike mandate alone may be both necessary and sufficient to get the Employer to take the Union seriously in negotiations. However, while a YES vote with a strong mandate is the best way to secure a fair and equitable collective agreement without a strike, it does not ensure that there will NOT be a strike.
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How would QUFA hold a strike mandate vote during the summer when so many QUFA members are away from Kingston?

While there are several options available, including mail-in ballots, phone-in ballots, and electronic ballots, the best way to hold a strike vote is for the Executive to call a Special General Meeting for the purpose of both discussing the issues and holding the secret ballot. Also it is legally possible to hold a contemporaneous electronic ballot. Special General Meetings require two weeks notice. The agenda with text of any motions to be voted on must be  circulated one week before the meeting. QUFA has circulated a survey asking members to choose among three dates to ensure that most members are able to participate. 
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If I am a department/program Head or Director of a School, would I be locked out / would I have to go on strike?

Yes, in either case. Heads and Directors of Schools are members of the bargaining unit.
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What sort of financial preparations should I make before a lockout or strike?

It is never too early to begin thinking about prudent financial preparations for a potential lockout or strike. If a lockout or strike appears to be imminent, you should consider contacting your bank managers, mortgage officials, or other financial advisors and inform them of potential lockout or strike. You should be aware that some credit card companies and banks offer insurance in case of lockout or strike and can make alternative payment schedules. You would need to check with your own financial institutions. If you have expenditures that need to be reimbursed by the university, it is to your advantage to submit receipts in a timely manner.
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What about my benefits?

Most employers allow benefit plans to continue through a strike if the Union covers the cost. If the Employer acts punitively and resists the continuation of benefit plans, alternative arrangements are in place through the CAUT Defence Fund and CAUT. Regardless of coverage, it is to your advantage to purchase eyewear, visit the dentist, stock up on medications, and schedule other routine medical procedures covered by your benefits before a strike or lockout deadline.
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How much is lockout/strike pay?

Striking QUFA members receive financial support in the form of strike pay. QUFA is a member of the CAUT Defence Fund. If QUFA is locked out or on strike, this fund disperses to the Union strike pay from its $22 million reserves. This pay is non-taxable and is paid at the rate of $80 per bargaining unit member per day, seven days of the week. However, bargaining unit members would be expected to respect the picket line and support the strike. In addition, members would be asked to perform strike duty (such as picket duty or other equivalent work for the strike headquarters).
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What must I do to qualify for strike pay?

In the case of a strike, you must withhold your labour from the Employer and remove yourself from campus. While you should not engage in research as an element of employment, provisions would be made to ensure that careers are not endangered or valuable data lost. Exceptions for special circumstances would be approved by the QUFA Job Action Committee (JAC), which would then provide passes to cross the picket line; however, the university administration would have to agree to allow QUFA members to enter the university. In the case of a strike, all striking members would also cease teaching, supervision, coaching, and administrative duties. Members must not hold classes off-campus or ask TAs to take over their duties (both are considered strike-breaking activities). In lieu of these duties, members would be asked to perform strike duties assigned by the JAC.
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Would I have access to campus during a lockout or strike?

No, except under limited circumstances where the QUFA Job Action Committee (JAC) has issued a picket line pass (e.g.: just to feed lab animals, check time-sensitive experiments, or drop children off at childcare facilities) and the university administration has agreed to allow QUFA members to enter the university. Even those members who receive such passes would participate in other strike activities, such as picket-line duty. It is useful to begin thinking now about what you might need to remove from your office or lab before a strike deadline.

While QUFA provides the picket pass, the Employer has the final say about access to campus in event of a lockout or strike. The actual access is dependent upon the protocol negotiated between QUFA and the Employer.
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Would I receive strike pay if I am on sabbatical?

It is QUFA’s position that members on sabbatical should be considered as not participating in a lockout or strike action and should continue to receive pay and benefits from the Employer. However, this must be negotiated in a protocol between QUFA and the Employer, so QUFA cannot make promises. Should the Employer decide to act punitively, the Union would provide strike pay. Sabbaticants in Kingston are expected to respect the picket line.
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Would I receive strike pay if I am on parental/maternity leave or disability leave?

It is QUFA’s position that members on parental/maternity leave or disability leave should be considered as not participating in a lockout or strike action and should continue to receive pay and benefits from the Employer. At this point, we do not know what the Employer’s position would be in these circumstances. Should the Employer decide to act punitively, the Union would provide financial support at the same rate as to those members who can participate in strike duty.
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Would I have Queen’s University email access?

At some universities, the union and administration have signed protocols that permit the continued use of university email; some other universities have not. We do not have such a protocol. Because our Employer may prove to be punitive and restrict email access, we urge every member to retain an outside email account (you can do this for free via Internet providers such as Gmail, Yahoo or Hotmail). The alternate QUFA email address in the event of a lockout or strike will be announced on the QUFA website: http://qufa.ca
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How can I stay informed and get involved?

You can join our official Facebook group Queen’s University Faculty Association (QUFA). You can read bargaining updates in our Bargaining Alerts and the QUFA Voices: http://qufa.ca. You can contribute to the QUFA Forum athttp://qufa.wordpress.com/, or to the pages “Your Voices” or “Messages of Support”on this blog.  The QUFA website provides links to all our news sources. You can volunteer to assist the Job Action Committee in preparations by contacting Annette Burfoot burfoota@queensu.ca or Samantha King sammi.king@qufa.ca

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Whom should I contact if I have additional questions?

If you have additional questions, please contact the QUFA office: qufa@queensu.ca or (613) 533-3033. You may also contact the QUFA President Paul Youngpaul.young@qufa.ca or the QUFA Chief Negotiator Allan Mansonmansona@queensu.ca
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