Sunday, October 20, 2019

CLC is struck; AUPE prepares to strike

There have been two interesting developed in Alberta’s labour scene this past week.

Last Tuesday, staff employed by the Canadian Labour Congress (CLC) began a strike against the CLC. The strike follows two years of bargaining. According to the union, the CLC is trying to roll back anti-harassment language, conduct a job evaluation (which is code for grinding wages by reclassifying work downward,) and a substandard wage settlement.

The workers are presently 15% behind the average wage in their field but the union is only seeking small and retroactive cost of living adjustments (1.6%, 2.3% and 3.45%). The workers also want their pension plan cap removed. This reflects that the pension plan has suffered substantial erosion since 2011 (i.e., the CLC is saving money by grinding its workers’ pensions).

The employer is offering a one-time payment of $1000 plus increases of 1.75% and 3.45% in the last two years of the agreement and one extra day off. This low-ball offer comes (of course…) after a significant bump to the salaries of the CLC President, VPs, and Secretary-Treasurer in 2017 followed by indexing to the consumer price index.

It is difficult to fathom why the CLC would want to precipitate a strike, but unions are notoriously shitty employers of their own staff. I’m not sure how credible the CLC will be going forward advocating for workers when it treats its own staff so poorly.

There is only one CLC worker employed in Alberta but she has put up an impressive picket line, bolstered by other labour activists and union officials. There have been two interesting absences from this picket line.

First, none of the elected staff at the Alberta Federation of Labour have attended the picket-line (which has been happening 12 blocks from the AFL offices). Federation of Labour officials in virtually every other province have joined CLC staff on their picket lines.

Second, no New Democrat MLAs have appeared, despite the picket line occurring next door to Edmonton centre MLA David Shepherd’s constituency office. While ND MLAs are happy to participate in photo-ops at labour events (and labour leaders have no option but to make nice), this masks a growing distance between the party and labour activists. Some of the back story can be found here.

The second story was the Alberta Union of Provincial Employees (AUPE) held its 43rd convention. This included a rally at the Legislature.

The expected serious public-sector cuts and legislative attacks on workers right are driving unions to cooperate in ways that they haven’t in recent memory. The presidents of the United Nnurses of Alberta, the Health Sciences Association of Alberta, and the Canadian Union of Public Employees were all present at the convention and rally. These unions have had strained relations but a common enemy is a wonder salve for old wounds.

The expected cuts is also driving unions to prepare for job action (at least some of which will likely be illegal). Union leaders used war metaphors, talked about direct action against employers, and explicitly discussed illegal strikes if the government picks a fight. The budget later this week will give us a good sense of how quickly things are going to heat up.

-- Bob Barnetson

Tuesday, October 15, 2019

CAUT bargaining simulation

Fraternizing? The bargaining teams intermingling. 
Two weeks back, I spent two days in a bargaining simulation, hosted by the Canadian Association of University Teachers. This simulation was a shake-down cruise for the new Athabasca University Faculty Association (AUFA) bargaining team as it prepares to go to the table in March or April of 2020.

Whatever the limitations of a simulation, the dynamics at the table felt real--there was stress, posturing, and implicit threats (athough it was still much politer than dealing with our actual employer!). Those of us not on the actual union bargaining team got to play the employer team in the simulation. This was a fascinating experience after seven rounds on the union side.

The post-simulation debrief identified three common experiences on the employer side of the table.

Unity of Goals: Unlike the union (which must mediate the interests of various subgroups), the employer had a unified mandate. This made it much easier to evaluate the other side’s proposals and game out possible responses.

Emotional Disengagement: We were all surprised how little emotional investment we had in the process or our proposals. This was largely a technical exercise for the employer team and, so long as we met our mandate, how we got there was immaterial. Further, the proposals had no personal impact on our working lives so we did not sweat the details. This was the least stressed I've ever felt at the table.

Power: The ability of the employer to refuse union proposals largely without consequence was fascinating. While the union team did have a strike threat, we judged it unlikely that they would strike on any issue but money. While we did have a mandate to get changes, if none were possible, status quo was not as harmful for the employer as it was for the union.

Overall, it was fun (and easy) to bargain on the employer side. And the experience helps explain why the employer often appears unprepared or disinterested at the table: the outcome of bargaining just doesn't matter that much unless there is a strike threat in play.

This was also a very good shakedown cruise for the union side. They got a chance to work with one another, experience the stress of making time pressured decisions, and cope with the sea of paper that is generated. I would say they are more prepared to bargain than any past AUFA team. 

Thanks to AUFA for hosting and CAUT for facilitating the session.

-- Bob Barnetson

Tuesday, October 8, 2019

Bizarre survey reignites "jobs in Athabasca" issue

A recurring issue at Athabasca University is the slow loss of university jobs from the town, mainly to the Edmonton area. While there was some recognition that this was a problem by former New Democrat government, the government took no action to resolve it and the entire senior leadership of the university decamped to Edmonton, St. Albert, and Calgary.

Recognizing that job loss at the town’s largest employer was potentially politically problematic, the university struck a committee (that included residents of the town) to discuss the issue and held an open-house in June. The open house infographic claims a 71% increase in Athabasca-based staff between 1985 and 2019. While probably true, using two data points 34 years apart disingenuously obscures the rise and fall of employees in intervening years. The university was also invited to join Athabasca County’s Tourism/Economic Development Committee.

There has been little concrete progress on this issue for several years beyond some sporadic language in job postings about giving preference to candidates who will live in Athabasca. In mid-September, a group of prominent Athabasca residents (mostly Conservative business people and politicians) arranged a meeting with the new Minister of Advanced Education to discuss this issue (and, specifically, the departure of senior university leaders). While this meeting was postponed (possibly at the request of the university), it suggests this issue is not going away.

This week, Athabasca-based AU employees received an invitation from the university to complete a survey designed “to help develop strategies to drive discussions on building a sustainable local community.” The survey appears intended to feed into the work of the Athabasca County’s Tourism/Economic Development Committee (although this is unclear). The survey itself is, to say the least, bizarre and appears to be hosted by 13ways.ca, a consulting company run by former Conservative MLA Doug Griffiths.

The survey asks a variety of yes/no questions about respondents’ perceptions of the community’s trajectory, drinking water (?), local spending, municipal flower plantings, various questions about strategies and partnerships (that respondents almost certainly can’t answer), seniors housing, and in-migration. A “bonus question” asks respondents to choose a community slogan from a list of negative options (at the bottom you can select none of the above). I have reprised the list of slogans below—it is quite shocking.



Presumably, this survey and the bonus question (which appears based on Griffiths’ book “13 ways to kill your community”) is designed to identify problem areas that Griffith’s consulting firm would be poised to help remedy. Whether this survey is valid or reliable (even in the most casual sense of the word) is a very, very open question (if this was student project, I’d give it a D).

Why the university would be sending this out to their employees to fill out is a good question. The survey suggests that there is something wrong with the Athabasca community that must be remedied (which is not true). This framing allows the university to shrug, say “no one wants to live there”, and absolve itself from any responsibility for the loss of jobs in Athabasca.

In fact, what has happened is that the university has been voluntarily transferring jobs out of the community for years. This job loss could be stopped literally overnight if the university simply started hiring more positions to Athabasca. There is no impediment to this: there is space and there are candidates who will move there.

That the university won’t do that and, instead, sends out silly info graphics and surveys, tells Athabasca community members pretty much all they need to know about Athabasca University’s actual commitment to the community. It would be pretty funny if all of AU’s ducking and weaving on this issue resulted in the government directing all senior executives to live and work in town.

-- Bob Barnetson

Tuesday, October 1, 2019

Workplace injuries and leading indicators in Alberta

This summer, researchers with the Institute for Work & Health released a study looking at occupational health and safety vulnerability in Alberta (apologies that I can't find a link to the report- I received it by email). Essentially, they surveyed workers in Alberta (n=1026) about their OHS experiences and circumstances and then did some analysis and comparisons to BC and Ontario.

Some basic descriptive stats about Alberta workers:
  • 58% were exposed to workplace hazards on a weekly basis
  • 42% had inadequate workplace OHS policies and procedures
  • 37% had inadequate OHS empowerment
  • 23% had inadequate OHS awareness
  • 36% of Alberta workers were deemed vulnerable because of exposure to hazards with inadequate protections on one of more dimensions.
Workers were also asked about their experiences of OHS outcomes
  • 28% agreed they worried about getting injured or ill from work
  • 19% reported a physical work-related injury in the past year
  • 18% reported a mental work-related injury in the past year.
  • 55% of injuries required time off from work
  • 19% of injuries were reported to the WCB 
The study also found (not surprisingly) that workers with the highest level of OHS vulnerability were the most likely to worry about and experience an injury (see screen cap below).


This study broadly confirms prior studies of worker self-report of injury in Alberta (e..g., roughly 1 in 5 experience physical injury; time off due to injury is often required but goes unreported to the WCB). It useful helps identify some leading indicators of workplace safety: workers who report adequate protections appear to be at a lower risk of injury.

-- Bob Barnetson

Tuesday, September 24, 2019

Film: American Factory



Netflix has recently released a new documentary entitled American Factory. This film chronicles the opening of a branch plant of Fuyao Glass America in economically depressed Dayton, Ohio by a Chinese billionaire. The location has previously been the site of a General Motors plant that was closed, putting thousands of workers out of a job.

The documentary (which notably includes no narration) tracks the first two years of the factory's operations and the clash of cultures that it entails. A trip to China for American workers--and the failure of the management strategies that they tried to bring back--was particularly striking. The vulnerability of the local workforce to exploitation and their awareness of their vulnerability is nicely captured.

The film explores the relentless work of employers to shed jobs and increase productivity (regardless of the cost to workers). It also does a nice job of exploring the tactics of both the union and the employer during a union drive.

-- Bob Barnetson

Tuesday, September 17, 2019

Is a general strike in the offing for Alberta?


I attended an information picket hosted by the Alberta Union of Provincial Employees (AUPE) last Tuesday. This picket was one of many AUPE is hosting to voice its members’ opposition to Bill 9, which the government passed in order to break collective agreements and stall wage arbitrations for public-sector workers.

AUPE (and other unions) have been organizing pickets all summer. These pickets are designed to channel and publicize public-sector workers’ anger. They also normalize picketing and are useful in identifying and training a new cadre of union activists going into what will likely be a difficult period for unions (legislated wage rollbacks are expected this fall).

The tone on this picket line was notably chippier than the one I attended in July. There were lots of cars honking in support. The only negative feedback I saw was from one (of course) pickup driver. I didn’t catch what he shouted but the shouted response from several female healthcare workers was “I hope you never need anyone to wipe your ass in hospital!”

There were the usual rah-rah speeches. A notable departure from the usual talking points was made by AUPE President Guy Smith who said (and this is a slight paraphrase) these pickets are practice for a general strike because, if the government won't respect our rights and the courts won’t force them to, a general strike is our only option. As an aside, general strikes were the subject of a very interesting analysis by Organizing Work a few weeks back.

Union leaders have studiously avoided talking about an illegal strike in public until now. The Court of Appeal overturning the injunction against Bill 9 and the MacKinnon panel musing about legislated bargaining mandates, back-to-work legislation and the notwithstanding clause may have contributed to this change in tone. Essentially, if the government is set on denying workers any meaningful legal recourse when the government violates the Charter and breaks collective agreements, the only option (as Smith suggested) is to take to the streets.

An interesting question is whether this speech was a calculated warning shot designed to sober up the government, a emotionally driven response to a tough couple of weeks for the labour movement, or an honest communication to workers about where things are heading? I’m inclined to think there is a bit of all three explanations at work.

If you’ve ever crossed swords with him, you’ll know that Smith is passionate and can engage in some… errr… rhetorical excess when he gets pissed off. That’s not to say he isn’t savvy and calculating (he definitely is both those things). Indeed, he may be leveraging the apparent ineffectiveness of legal options as a way to pressure other labour leaders into taking a more aggressive stance than they might otherwise be inclined to.

His comments may also have beeb an effort to warn the government of the consequences of their intended course of action. Jason Kenney’s spat with Amnesty International (of all groups) this week suggests that this kind of warning is likely just going to amp up a government that is already demonstrably intemperate and thin-skinned. I presume Smith knows that. Perhaps Smith is making lemon-aide: there’s gonna be a fight, so its best to goad Kenney into (further) overplaying his hand because a boss who’s being a complete asshole is a great asset to unions.

And telling workers there’s going to be a fight (especially a sympathetic crowd like people who picket after work) is a good way to start inoculating workers against the fear and smear campaign the government will likely run in conjunction with any legislation. It’s also the honest and right thing to do.

-- Bob Barnetson

Tuesday, September 10, 2019

Rethinking Alberta's essential services legislation

This post original appeared on the Parkland Institute blog.

In January 2015, the Supreme Court of Canada ruled that "[t]he right to strike is an essential part of a meaningful collective bargaining system" and effectively made blanket bans on public sector strikes unconstitutional. As was required of all provinces in the wake of the ruling, Alberta's then-New Democratic Party (NDP) government enacted legislation in 2016—Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services—that granted most public-sector workers the right to strike as long as essential services were maintained.

Alberta's public sector unions were broadly supportive of this change, as the right to strike was expected to incentivize public sector employers to bargain more earnestly than they did when bans on public sector strikes were in place and disputes were resolved by arbitration. That this right to strike was subject to limits to maintain essential services was (at least publicly) described as a fair trade-off.

During the 2019 provincial election, the United Conservative Party (UCP) promised a raft of changes to provincial labour law, including replacing the portion of the current essential services provisions that bars the hiring of replacement workers when there is an essential services agreement (ESA) in effect. The UCP's expected amendments to Alberta’s labour laws to provide an opportunity to reconsider how to best reconcile workers' right to strike with protection of the public interest.

Interests during work stoppages

A work stoppage—either a strike or lockout—is a contest between a union and an employer. Each side applies economic pressure to the other in the hope of achieving a more favourable settlement than it could otherwise negotiate.

Unions apply pressure mainly by denying the employer their members' labour. In the case of a private-sector employers, a strike is effective by reducing the profits of the employer. By contrast, a strike generates political pressure on public sector employers because they are unable to deliver the services they are mandated to provide. In both cases unions generally want as many of their members to be on strike as possible to maximize the pressure on the employer.

The state has enacted labour laws that create significant procedural obstacles to work stoppages. These barriers, such as compulsory mediation, don't ban work stoppages but drag out the process and make it harder for unions to build support for strike action. While these laws formally apply to both unions and employers, in practice they weigh more heavily on unions.

For their part, employers use a variety of techniques to weaken a union's strike power, including hiring replacement workers (sometimes called "scabs"). Scabs allow the employer to keep operating (to some degree) while the striking workers go without a salary. The only limit on the use of scabs in Alberta is a ban on using replacement workers when an ESA is in place.
Alberta’s essential services legislation

Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services amended the Labour Relations Code and Public Sector Employee Relations Act. The key changes were:
  • The default dispute-resolution process when public sector bargaining reaches impasse became strike-lockout (excepting firefighters and police officers, who continued to use mandatory arbitration).
  • Where employees performed essential services, an ESA had to be negotiated before the parties could access mediation, hold a strike vote or lockout poll, or commence a work stoppage. An essential service was defined as one where (1) the cessation of the service would endanger the life, health or safety of the public, or (2) the service is necessary to maintain the rule of law or public security.
  • ESAs are negotiated between the union and employer under the oversight of a commissioner appointed by the government. The parties may engage the services of an umpire to assist them in settling the terms an ESA.
Once an ESA is in place, the employer is prohibited from hiring (or otherwise acquiring the services of) replacement workers during any work stoppage. If an employer is deemed to provide no essential services then there is no prohibition on hiring scabs.

Unlike the other procedural requirements that must be met before a work stoppage can begin, essential services legislation is not formally even-handed. Rather, it is designed to diminish the effectiveness of a strike (and thus the union's leverage) in order to protect the public, which would be harmed if hospitals suddenly closed or the water went off. In contrast, the only part of the existing essential services legislation that in any way diminishes employer's leverage is the ban on using scabs. As previously mentioned, the UCP has promised to repeal this ban on hiring replacement workers.

ESA effects on interests

Alberta's current essential services legislation is far from perfect and appears to have created unexpected and sometimes perverse outcomes. In some cases, the legislation incentivizes employers to seek to evade their obligation to protect the public interest in order to increase their bargaining power, and in some cases effectively renders moot workers' right to strike.

Consider public sector employers that provide relatively few essential services, such as post-secondary institutions. The replacement-worker ban incentivizes these employers to try to avoid negotiating an ESA so the employer can use scabs to undercut the unions' strike power. To the degree that these employers can and do evade an ESA, this incentive undermines the protection of the public interest.

There are, of course, checks and balances in this system. An employer that wants to avoid an ESA must convince the Essential Services Commissioner that the employer provides no essential services. This sounds like a good system, but practically speaking the only way the commissioner would know if the employer was lying is if the union opposed the application. If the union decided not to fight for an ESA, employers could gain an exemption.

A union might choose to not fight for an ESA because such a fight delays the union's ability to move into a strike position. Some public sector employers have been very successful in drawing out ESA negotiations for months by rejecting the need for an ESA or by delaying the disclosure of information necessary to negotiate the ESA. Stalling the conclusion of an ESA undermines workers' right to strike, which is already delayed by other legislative requirements, and can sap a union's capacity to strike. In the meantime, the employer continues operations and the workers do without whatever concessions they were seeking in bargaining.

That unions might not choose to fight for an ESA is a real risk. After six months of employer stalling, my own union had to decide whether we should put the public interest (i.e., advocating for an ESA) ahead of our members' economic interests (i.e., getting to a strike position as quickly as possible). In the end, we decided to protect the public, in part because we also benefited from the scab ban, but that decision could easily have gone the other way.

ESAs and illegal strikes

The ability of employers to delay the negotiation of an ESA also heightens the risk that workers will engage in illegal work stoppages. This is a very real risk in the health- and seniors-care systems, where workers provide many services that are essential. In these workplaces, the essential services legislation incentivizes employers to seek to have virtually the whole workforce deemed essential.

For example, consider a long-term care facility where 85 or 90% of the services have been deemed essential. The tiny fraction of union members who can legally strike can walk the picket line eight hours a day, week after week, in fair weather or foul, but this strike has little chance to succeed because business basically continues as normal. This dynamic undermines the public-policy objective of protecting workers' constitutional right to strike by allowing them only a meaningless strike.

In some ESA negotiations in seniors care facilities, employers have actually argued for a level of staffing during a work stoppage that is higher than the level of staffing with which the employer normally operates. Attempting to find the true level of staffing required to maintain essential services has proven to be an nearly insurmountable problem. Often, whether a task or a job is an essential service is not clear, and employers—who hold most of the information—have an incentive to shade this information. Umpires can be reluctant to rule against employers because the risk of being wrong is that someone could die as a result.

The patience of union members is not endless, and at some point the workers will simply (albeit illegally) walk out. Illegal (or "wildcat") strikes are profoundly disruptive and can bring about the disruption of truly essential services that ESAs are specifically designed to prevent. In these cases, the ESA process itself also undermines the public policy goal of protecting the public. While unions face severe financial penalties for wildcat strikes, they may well turn a blind eye to pending wildcats because they know it may be the most effective to resolve a bargaining impasse.

Analysis and options for reform

Overall, Alberta's experience with ESAs suggests they significantly impede workers' constitutional right to strike. So why did the worker-friendly NDP government enact legislation like this? The answer is likely that the government had to respond to the 2015 Supreme Court ruling while trying to balance the interests of workers and the public. Essential services legislation offers a widely accepted (if ineffective) way to do this. It also creates further barriers to effective and legal public sector strikes—which was in the NDP's interest while in government.

The UCP’s election promise to eliminate the replacement worker ban will have three effects:
  1. For employers with few essential services, eliminating the scab ban eliminates one incentive for employers to resist an ESA. Employers may still stall negotiation to delay job action.
  2. For employers with many essential services, eliminating the scab ban has no effect on the incentive to seek an overly inclusive ESA or stall negotiation to delay job action.
  3. For unions, the removal of the scab ban further undercuts their ability to mount a meaningful strike by giving employers the power to hire replacement workers in addition to being able to stall strikes and negotiate overly expansive ESAs.
The key problem with the current approach is that the process incorrectly assumes that both parties will put the public interest before their respective self-interests. In doing so, it simply creates another venue for employer-union conflict.

Assuming the UCP government follows through on its promise to eliminate the ban on scabs, workers may be better off with an alternative approach to protecting the public interest. For example, employers might be granted a fixed window of time during which they must develop a plan by which to maintain essential services. After this time period has passed, all union members can go on strike or be locked out (assuming the other legislative requirements for a work stoppage are met). This approach ensures the public interest is protected while minimally impairing the ability of public sector workers to exercise their constitutional right to strike. It does this by placing responsibility for maintaining essential services where it belongs: on public sector employers. The employer is best positioned to know what services are truly essential, and the employer can make whatever arrangements are necessary to protect the health, safety, and life of the public, as well as maintain public order.

This might include redeploying managers, hiring replacement workers, and/or negotiating some sort of voluntary and partial coverage with the union. The cost of such arrangements may also incentivize some employers to actually negotiate in good faith (thus reducing the risk of a work stoppage).

While workers would face no onerous legal restrictions on their right to strike, the strike power of unions would remain constrained by:
  • some union members crossing their own union's picket line,
  • employers aggressively planning to maintain services, and
  • public sympathy for strikes waning over time as inconvenience mounts.
The thorniest question about this proposal from the government's perspective is how it can ensure the public interest is protected against an incompetent employer. The government can doubtlessly find ways to require planning and penalize incompetence in the civil service as well as among public sector agencies, boards, and commissions. Should a true threat to public safety arise, it can be dealt with under the public emergency provisions of the Labour Relations Code.

From the perspective of workers, the greatest risk of this proposal is that the government will collude with public sector employers to misuse the public emergency provisions of the Labour Relations Code in order to prevent effective strikes. For example, an employer might make no preparations and the government would then be "forced" to use public emergency (or other) provisions to stall job action. The only check against this sort of collusion is the potential for wildcat strikes. While the state can use the legal system to sanction illegal strikes, if workers and unions are willing to bear the sanctions that result, then the harm caused by the strike continues.

It is very unlikely that the UCP will make such a fundamental change to the essential services regime. This reflects that, like the NDP government that preceded it, the UCP government will benefit from the barrier to effective and legal public sector strikes created by the existing ESA provisions. Instead, the UCP is likely to simply remove the replacement worker ban when an ESA is in place, which will further tip the playing field in favour of the employer (i.e., the government) by delaying job action and undermining workers' strike power.

-- Bob Barnetson