Central University (CU) opened its law school in September 2011. The law school is the only part of the university offering a graduate-level professional degree. A group of the law school’s faculty members were hired in 2011, and additional faculty were hired in the next two years.

The Central University Faculty Association (CUFA) is the certifi ed bargaining agent for all of Central’s full- and parttime faculty members. It also represents university employees in a number of other areas, such as academic advising and library services. In 2010, CUFA and CU signed a collective agreement which was in effect until mid-2012. They are currently negotiating for a new collective agreement, and the terms and conditions of the former collective agreement will

be in effect until a new one is signed. Under the collective agreement, there are three levels at which professors can be appointed: assistant, associate, and full. New professors are generally hired as assistant professors and then must apply to be promoted to associate professor. Associate professors are usually granted tenure (a permanent job).

In October 2011, John Weiss, the CUFA president, held a meeting with the law school faculty members to introduce them to CUFA and the collective agreement. A few weeks after the meeting, six faculty members sent a memo to Weiss, thanking him for the meeting and expressing concerns about the relevance of some of the collective agreement items to

their working conditions. The specific items of concern were:

– The majority of CU departments were headed by a department chair. However, most law schools are headed by a Dean of Law, and CU had a Dean of Law.

The memo asked that the law school be exempted from the requirement to appoint a department chair.

– CU and CUFA had signed a Letter of Understanding permitting the law school to give “market supplements” to the salaries of the law school faculty members. However, in the meeting, Weiss expressed the view that this Letter of Understanding only applied to faculty members who were granted tenure when they were hired. The memo stated that the law school needed to be able to offer more competitive salaries in order to attract new faculty members.

– The memo asked that the law school be able to appoint untenured assistant professors directly to the position of associate professor with tenure.

The memo asked CUFA to respond in writing, in order for the law school faculty to consider the response and prepare for “a more focused meeting.”

In November 2011, Daniel Dyer, a faculty member in the law school, saw Weiss on the CU campus. He told another law school faculty member that Weiss said the memo would be “considered” but that the CUFA executive could not decide on its own some of the issues raised in the memo, particularly if they involved “concessions” that would “weaken the collective agreement.” Dyer said Weiss suggested a survey of the CUFA membership on these issues might be a “way forward.” A week after Dyer’s conversation with Weiss, Weiss responded in writing, on behalf of CUFA, to the law school faculty members’ memo. His letter stated that CUFA “will be discussing your correspondence in the very near future.” Additionally, it stated that a group of faculty who had the equivalent of a full-time workload but were only receiving the minimum required benefi ts “are considering leaving our union unless we can do a better job of seeing that their needs are met,” and that since no faculty members received a pay increase in the last set of negotiations, the rest of the faculty “are asking the union to make sure we represent their needs in this round of bargaining as well.” The letter also noted that CUFA and other university unions had recently been told by the government that there would be no money available for salary increases in the near future. Weiss concluded his letter by inviting a representative of the law school faculty members to join the CUFA executive. A week later, James Cassar and Jane Siraj, two of the law school faculty members who had signed the original memo to CUFA, attended a regular CUFA executive meeting. After the meeting, they sent a report to the other law school faculty members that characterized the events of the meeting this way:

– The CUFA executive members were “polite” but Cassar and Siraj were “disappointed with what they have to say about our memo.” They characterized the discussion of the memo as the executive members “taking turns explaining why the things we were requesting . . . were unacceptable.” 

– One executive member said that CU did not ask to have a law school and that giving “special” conditions to the law school faculty members would be “the thin edge of the wedge.”

– Another executive member said that giving increased salaries to the law school faculty members would not be welcomed by other faculty members who had not received a pay increase in the past three years. 

– Another executive member said that CUFA understood the “market supplements” to law school professors’ salaries to have been a “one-time thing” and were not to have been repeated. Cassar and Siraj noted that they did not ask how this interpretation of the Letter of Understanding had been reached.

– A faculty member from another program said that noncompetitive salaries were also a problem in hiring faculty in that program and said “welcome to the club.” 

– Another executive member said that as far as she was concerned, there was one collective agreement and it had to apply to everybody. She said that it would create an “aristocracy” to have faculty members in one program paid more than all other faculty members.

– The CUFA past president suggested that it was in everyone’s interest to advocate for higher salaries for faculty members.

– At the end of the meeting, another executive member said that the law school faculty members were being “used” by the dean of the law school to advance his “agenda.”

At the end of the meeting the CUFA executive tabled the discussion of the memo and referred it to a subcommittee that regularly discussed issues around salaries and working conditions.

Cassar and Siraj said in their report that at the meeting they attempted to respond to some of the comments that were made, which included a brief explanation of why they felt the conditions of the current collective agreement did not fi t the circumstances of the law school. A week after the CUFA executive meeting, the law school faculty members sent the executive a follow-up memo. The memo stated that “it is our strong preference to organize our law faculty in a manner that is not currently contemplated in the collective agreement” and offered to work with the CUFA executive in developing a Letter of Understanding that would facilitate this. The memo also stated that the current collective agreement did not “contemplate” the situations the law school faced in hiring new faculty members, and that “[while] we do not doubt that CUFA’s broader membership has valid grievances with the administration [around salaries], we do not think this justifies opposing market-based salaries for law faculty members.” The memo added that in the view of the law school faculty members, market-based salaries were available to the law school under the existing Letter of Understanding.

Three weeks later, a law school faculty member sent an email to Weiss asking when there would be a response to the memo. Weiss responded by email the same day to say that the CUFA subcommittee discussing the issues had a meeting scheduled for that day. Weiss also indicated that there had been “a number of meetings and discussions behind the scenes” within CUFA since the meeting that Cassar and Siraj attended, in addition to a meeting between CUFA and the CU administration that was scheduled for later that same week.

Two weeks after that, Cassar emailed Weiss to ask for a response to the memo by the end of the following week. Cassar’s email stated that “CUFA has, in our view, a duty to consult with us, and to consider our views, before taking positions with the CU administration that might affect our interests.” Cassar also sent Weiss a separate email asking for clarification of CUFA’s interpretation of the Letter of Understanding regarding law school faculty salaries. Weiss responded to the second email, stating that CUFA held the position that the agreement in the Letter did not apply to non-tenured faculty members. The next day, CU’s director of human resources emailed Cassar to say that she was on the CU bargaining committee and that CU’s “understanding and intent” during bargaining was that the Letter applied only to faculty members with tenure. Two days later, Weiss emailed the law school faculty members. The email began by thanking Cassar and Siraj for attending the CUFA executive meeting and for “hear[ing] and respond[ing]” to the concerns expressed by the executive members. The email then stated that the CUFA subcommittee had reviewed the requests of the law school faculty members and had recommended that “an extraordinary appointments committee” be created to address hiring in the law school. The email added that the CUFA executive had accepted the recommendation. A draft Letter of Understanding for a “Faculty of Law Appointments Committee” was attached to the email. Three days later, Cassar emailed Weiss to ask if CUFA was going to respond to the law school faculty members’ concerns about organizational structure and pay rates.

Cassar and the other complainants told the board that they have not received any further correspondence from CUFA on these issues.

A month later, the law school faculty members met with CU’s vice-president. Cassar and the other complainants say that at that meeting, the vice-president told them that CU supported the law school faculty and was “agreeable” to changing the collective agreement to refl ect their concerns. Cassar and the other complainants say that in the fall of 2012, CU verbally offered CUFA a two-year renewal of the current collective agreement, with a 2 percent increase in salaries, but on the condition that CUFA make “certain concessions with respect to the law school.” At the end of October 2012, CUFA called a special general membership meeting for November 7, to discuss a “verbal offer” that CU had made for a new collective agreement.

On November 6, Cassar sent an email to CUFA on behalf of the law school faculty members, stating that they felt it would be “unacceptable” to renew the current collective agreement without “making changes to address the law school’s special circumstances.” The email also reiterated the concerns about faculty salaries, and stated that “in the longer term, we are in favour of higher salary bands rather than market supplements,” and again offered to work on drafting a Letter of Understanding to “adapt” the collective agreement terms for the law school. The email was copied to CU’s vice-president and the CU administrator in charge of faculty relations.

Weiss responded in an email the same day, saying that he would give the email to the CUFA bargaining team and executive to “make sure they are aware of your concerns. . . . while not forgetting to consider faculty from other areas, of course.” Weiss also mentioned that CU’s faculty pay scales were lower than those at another university in the province, whose faculty members were currently claiming that they were among the lowest-paid faculty members in the country. At the November 7 meeting, CUFA’s members voted to reject CU’s bargaining proposal. Cassar asked Weiss for a copy of the PowerPoint slides that the CUFA executive used

at the meeting to outline the proposal. Weiss said that “generally” these types of documents were not distributed, and added that the slides contained “very sensitive information.” Toward the end of November, the CUFA bargaining committee met with the law school faculty members.

The faculty members present at that meeting said that Bill Lorello, the chair of the committee, expressed a willingness to work with the law school faculty and said that he was “not opposed” to making changes to the collective agreement. At the start of December, Cassar emailed Lorello with copies of all the emails that had been sent to Weiss, and expressed the law school faculty members’ desire to work with CUFA to address their concerns. Cassar and the other complainants say that to their knowledge CUFA has not developed a bargaining agenda that includes their concerns. The following July, the dean of the law school resigned. Cassar and the other complainants say that the dean told them there was a “hostile relationship” between the law school administration and CUFA. They also say that CUFA has never contacted them to follow up on the impact of the dean’s resignation. 

The Complainants’ Position

The complainants allege that CUFA’s behaviour fails to meet the standards for duty of fair representation on all of the relevant criteria. They say that CUFA acted arbitrarily by failing to inform itself about the challenges faced by the law school, by blatantly disregarding the law school faculty members’ interests in collective bargaining, by not explaining its opposition to their concerns, and by not accepting their offers to work collectively to resolve the issues. They

also allege that CUFA has lobbied the CU administration to not give the law school faculty members higher salaries. 

The complainants argue that CUFA has been discriminatory in practising “favouritism” in preferring the interests of other kinds of faculty members. They also allege that CUFA has never explained why addressing the concerns of the law school faculty members means “sacrifi cing” the needs of other members.

The complainants argue that CUFA has acted in bad faith by displaying “hostility” toward them. They note that CUFA has launched grievances against members of the law school faculty who are not CUFA members, and claim that these grievances are “vexatious.”

The Union’s Position

The union did not make a submission to the board.