From Stephen Petrina (UBC FA Executive Board Member):
We won again! After eight months of deliberation and three days of hearings, the BC Labour Review Board (LRB) released a decision on the University’s appeal of the The University of British Columbia v. UBC Faculty Association (Dr. Mary Bryson and Master of Educational Technology) Arbitration Award, which was handed down two years ago. UBC’s appeal of the Dorsey decision was dismissed on 28 February 2006!
In ruling on the appeal, LRB Vice Chair G. J. Mullaly upheld the Dorsey 2004 Arbitration Award on all counts, reinforcing, in legal terms: 1) the stipulation of copyright as a term and condition of employment; 2) the right of faculty associations or unions to bargain IP on behalf of their members; 3) the intricate interdependencies among institutionalized work practices that regulate academic work (whether that work is teaching, research, publication, or any other form of employment-related labor in the University) and academic freedom; and 4) the right of faculty members to refuse direct negotiations with administrators over terms and conditions of employment. This reinforces the Dorsey Award as an *extremely significant* decision for academics!
Once again, the implications are such that course contracts signed for the MET program were inappropriately negotiated and bargained and are rendered invalid.
Dorsey’s Arbitration Award (18 Feb 2004) can be downloaded from:
http://www.caut.ca/en/issues/academicfreedom/MaryBrysonArbitrationAward.pdf
Mullaly’s Appeal decision (28 Feb 2006) can be downloaded from:
http://www.lrb.bc.ca/decisions/B056$2006.pdf
See also the special issue of Workplace, which addresses the legal implications of the arbitration award (see Triggs article) and the arbitration and appeal proceedings within the context of the MET program (see Petrina article).
Mullaly wrote in his 28 February decision:
“In summary, the Arbitrator found (i) that in a university setting, many issues related to copyright are “conditions of employment” of faculty members; (ii) that the University, in its capacity as Bryson’s employer, negotiated with her, in her capacity as its employee, about conditions of her employment (including, but not limited to, copyright) that differed from the conditions of employment in the Collective Agreement; (iii) that because she did not agree with the position the University took in those negotiations, it did not permit her to do work it had previously assigned to her as part of her regular teaching load; (iv) that her refusal to agree with the position taken by the University constituted an ‘activity on behalf of the Association’ within the meaning of Article 4 of the Framework Agreement; and (v) that when an action of the University results in a faculty member suffering an adverse effect because he or she was engaged in activity on behalf of the Association, the University violates Article 4 of the Framework Agreement. For the reasons given above, I find that the University has not demonstrated that the Arbitrator committed any reviewable errors in making any of these findings or in issuing the remedy he did. Accordingly, the University’s Section 99 application is dismissed” (pp. 38-39).
With the reasoned findings of both Dorsey and Mullaly, academics are on firm legal ground to persuasively link academic freedom to the academic exception. Yet, as Mary Bryson noted upon hearing of the victory in the appeal decision, we cannot rest on this issue until our Collective Agreement reaffirms academic freedom and the academic exception in language and spirit. Mary notes: “At this point, it seems that the most important ongoing action that follows from the original ruling is to bargain strong framework agreement language that will protect [our] Academic Freedom and Intellectual Property rights.”
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