IMPORTANT UPDATE – Second CUPE Application for Trade Union Certification of Post-Doctoral Fellows

PDAD&C #6, 2009-2010
HR #3, 2009-2010

MEMORANDUM

To: Post-Doctoral Fellows
cc: PDAD&C
Principal Investigators
From:     Cheryl Misak, Vice-President and Provost
Angela Hildyard, Vice-President Human Resources and Equity
Date: August 5, 2009
Re: IMPORTANT UPDATE – Second CUPE Application for Trade Union Certification of Post-Doctoral Fellows



AUGUST 5, 2009 UPDATE: Last Friday, July 31, 2009, CUPE filed a new application for trade union certification of post-doctoral fellows. As you may recall, CUPE first filed an application on July 22, 2009 but asked the Ontario Labour Relations Board (“OLRB”) to dismiss its application due to insufficient membership support. This time, CUPE is seeking to represent all post-doctoral fellows except for those who “apply for and are awarded funding from any source other than the University of Toronto including, without limiting the generality of the following, NSERC, SSHRC, CIHR or foundations such as the Mellon Foundation.” In other words, it appears CUPE is seeking to unionize post-doctoral fellows who receive some or all of their funding from the University of Toronto.

If the OLRB orders a vote for this second application, it will likely take place early next week. We therefore strongly encourage you to speak with your post-doctoral fellow colleagues about this important development and to encourage them to exercise their right to vote, should a vote be ordered. We will communicate with you further if we are notified that a vote is taking place, and will let you know what date and time the OLRB has set. Since many of you are away from the University at this time, and may not have seen the previous communication from the University, the previous communication is set out below.
 


The University is writing to you to advise you of this important development as it may have a significant impact on you personally and how your relationship with the University is structured. The University also wants you to be aware of some basic points about unionization, as well as the University’s position on this certification attempt.

The University respects the rights that individuals have under Ontario law to choose whether to be represented by a trade union. Ontario law permits employers to express their views regarding unionization. Accordingly, even though the University does not view itself as your “employer” it wants to take this opportunity to provide you with some information on this important subject so that you can make an informed decision if a vote is ordered by the OLRB.

The University places great value on the relationship it has with you, and its other post-doctoral fellows. Aside from the legal details of the relationship that will be described below, the University has always taken the view that post-doctoral fellows are important members of its academic and research community. It is proud that so many excellent post-doctoral scholars have chosen the University to further their career goals by engaging in research and scholarship alongside senior faculty members. While the University will respect your decision whether or not to be represented by a trade union (subject to the OLRB’s determination on employment status), it wants to ensure that, as far as possible in the short time available before a representation vote is held, you have a good understanding of what the certification process is and of other things you might consider in making your decision.

Post-doctoral fellows are not “employees”

In order to be unionized, CUPE must satisfy the OLRB that post-doctoral fellows are “employees” of the University since only people with that status can be unionized.

The University has always taken the position that post-doctoral fellows are not “employees” and that, instead, they are highly regarded independent scholars who, having completed their Ph.Ds, are engaged in furthering their career goals by engaging in research and scholarship in specialized areas to prepare them for work in academia, research or in other fields where advanced academic experience would be relevant. The only time you would be viewed as an employee would be for any teaching in which you might engage.

The stipend income received by post-doctoral fellows, some of which may come from competitive awards, some from grants and some from the University, has been characterized as T4A income (scholarships, fellowship, bursary income) except for any portion that is received for teaching. Statutory deductions (CPP, EI, etc) are not taken from T4A income. This would change if the Canada Revenue Agency (“the CRA”) were to treat post-doctoral fellows as employees since statutory deductions would have to be made from employment income. The CRA makes its own decisions and would not be bound by a determination by the OLRB regarding employment status, but if at CUPE’s urging the OLRB rejected the University’s position that post-doctoral fellows are not employees, and found them to be employees for labour relations purposes, this would likely have a significant impact on the CRA’s analysis.

In addition, the characterization of post-doctoral fellows as non-employees is a critical factor that the CRA will consider in assessing whether T2202A forms may be issued. The tax legislation expressly states that if an employment relationship exists, non-taxable treatment is prohibited even if all of the requirements for issuing a T2202A are satisfied. Such forms are typically issued only to those who have paid a tuition/registration fee in a recognized educational program. As you may know, the University has sought and is still waiting for a technical interpretation from the Canada Revenue Agency as to whether it can issue these forms. If CRA rules that, on the University’s facts, it is appropriate to issue a T2202A form, the stipend paid to the post-doctoral fellow will not be subject to tax if he or she is regarded as a “student” enrolled in a “program at a post-secondary level” in a “qualifying educational program.

The Importance of Voting

If the OLRB orders a vote it will be a secret ballot vote. No one will know how you voted. The key thing is that it is important to vote. The outcome of the vote will be determined by a majority of those casting ballots, not a majority of those eligible to vote. Thus, if only 100 post-doctoral fellows vote, out of a possible voting constituency of more than 500, and if only 51 vote in favour of CUPE, those 51 will determine the outcome for all 500 members of the constituency. The University therefore strongly encourages you to exercise your right to vote.

We will advise you, as soon as we know, of the times, dates and locations for voting.

Some of you have raised concerns regarding the probable date of the vote, which may be at a time when many may have chosen to be away from the campus. The University understands and sympathizes with these concerns. However, it is the OLRB, not the University, which sets the date for a vote, and it typically does so within a very short time after the application is made by the trade union. If you have concerns you may wish to contact the Registrar of the OLRB.

Collective Bargaining and Mandatory Union Dues Deduction

If CUPE were successful in obtaining bargaining rights for post-doctoral fellows it would negotiate with the University for a first collective agreement. Neither the Union nor the University can anticipate what the terms of such an agreement would be. However, it is almost certain that one of its components would be mandatory deduction of union dues or their equivalent from all members of the bargaining unit, whether or not you joined the union as members and whether or not you voted for the trade union. People in other CUPE bargaining units at the University currently pay mandatory dues deductions of between 1.5% and 2.5% of income.

Other Deductions from Income

Perhaps the most significant changes that we would expect to occur if post-doctoral fellows, whether through unionization or otherwise, were viewed by the CRA as being “employee” would be the treatment of your income. As mentioned earlier, only “employees” can be unionized. Currently, stipend income received by post-doctoral fellows (with the sole exception of income from teaching) is treated as T4A income and is not subject to deductions for income tax (this is assessed instead at the level of the individual taxpayer), CPP, or EI.

If post-doctoral fellows are treated as employees by the CRA, however, their income would be viewed as “employment income” and would be subject to statutory deductions made at source for CPP and EI which together is likely over $2,000 in the case of a single individual receiving a stipend of $38,500. As noted above, a finding by the OLRB (at CUPE’s urging) that post-doctoral fellows are employees for labour relations purposes could very well have a significant impact on the CRA’s view of whether a post-doctoral fellow is an employee. Income tax would also be deducted at source. Post-doctoral fellows currently calculate and remit any applicable income tax only at the point of filing their annual personal tax return (in the case of Canadian taxpayers).

Promises

During a certification campaign, the University is prohibited by law from making promises about what future arrangements would apply under a collective agreement. Unions do not face similar limitations, and many make promises about what they hope to achieve if they are successful. The key point, however, is that any changes would have to be negotiated. Unionization does not automatically lead to any particular kind of economic improvements. Moreover, each collective agreement is unique, and what has been obtained in other Universities should not be viewed as a template.

As highly educated independent professionals you should make your own inquiries about what unionization might involve and you may want to ask CUPE questions about what specifically it proposes. For example, what dues would it seek to deduct from your pay? Does CUPE’s constitution provide for any special levies, fines or assessments? What does CUPE’s constitution say about the rights and duties of its members? What is CUPE’s recent history in Ontario regarding strikes and labour disruptions? What are CUPE’s views about the lengthy strike by a CUPE local that occurred at York University? Does it represent other post-doctoral fellows? What do collective agreements in this sector typically look like? There may be other questions that you might have. The key point is that making a decision about whether to unionize is an important one and you should consider it carefully based on as much information as possible. It should not be viewed as a short-term experiment, but rather as a long-term commitment, and as would be the case in any other long term commitment careful assessment of pros and cons is important.

Collective Agreements Preclude Individual Contractual Arrangements

Post-doctoral fellows currently deal directly with faculty and department administrators on all aspects of their research engagement with significant flexibility and independence, within the general confines of the Governing Council’s Policy. If post-doctoral fellows are unionized, the Union will become the exclusive bargaining agent which means individual post-doctoral fellows will not be able to negotiate directly with the University on terms and conditions of their engagement.

The University’s Preference

As stated, Ontario law permits an employer to express its views regarding unionization. The University has many collective agreements with different trade unions covering various groups of employees. It is not an anti-union employer. Indeed, it has worked successfully with CUPE locals in negotiating and administering collective agreements covering several other bargaining units at the University. However, in the case of post-doctoral fellows, the University does not believe that an employment relationship is an accurate or reasonable characterization of the arrangements it has with you. The University also does not think that unionization is well-suited to the unique interests that apply to post-doctoral fellows.

Final thoughts

The decision to vote for or against unionization is a very important one that only you can make. Neither the Union nor the University may coerce, intimidate, threaten or otherwise unduly influence your decision.

The University will respect whatever decision you make, subject to the OLRB’s ruling on employment status. The University is content to rely on its history of what it believes to be fair treatment and the opportunities it has provided to engage in research and scholarship alongside leading faculty who highly value the contribution that post-doctoral fellows make. All that it asks is that you consider unionization carefully and that you look at all aspects of what it may involve.

As this matter develops we will do our best to keep you informed and up-to-date. For details of the vote, watch for further communications from the University or consult the Human Resources website at http://www.hrandequity.utoronto.ca/labourrelations/pdf.htm.  

Thank you very much for taking the time to consider this important matter.