Monday, February 6, 2023

Research: Grievance Arbitration Project

Back in November, I posted a bit about a research project I’m involved with that is looking at grievance-arbitration decisions in Alberta. As of this morning, we’ve coded about 441 decisions by arbitrators (spanning 2006 to 2011) and I’m in a position to talk a bit more about the project and the themes we’re seeing.

When a union and an employer are unable to resolve a disagreement about how the employer has applied the collective agreement (or law, policy, or past practice), they can remit the dispute to an arbitrator for a decision. Arbitration is a form of adjudication akin to the courts. One of the main differences between arbitration and the courts is that, in arbitration, the two parties normally jointly select the arbitrator who will hear the matter (although, sometimes other appointment processes are used).

During the selection process, it is common for a side to internally discuss the merits of proposing or accepting particular arbitrators to hear a matter. This discussion appears premised on the assumption that arbitrators can be (un)sympathetic to certain arguments, evidence, types of grievances, and kinds of grievers. This belief is consistent with a constructivist view of the world, wherein there is infinite stimulus and what one pays attention to and how one interprets that stimulus is driven, in part, by one’s thoughts, beliefs, and expectations.

If the “who you get affects what you get” hypothesis is true, it suggests that identifying patterns in arbitrators’ decision-making can be used to increase the odds of success. This hypothesis (and, if true, the efficacy of various strategies that lever it) is part of what we’ll be examining once we’ve finished coding the dataset (ideally by Christmas 2023, but who knows).

In coding the dataset, we’re assigning the outcome of decisions one of three codes: union win, employer win, or mixed decision. An example of a mixed decision might be a termination grievance. The employer might seek to have the termination upheld, the union might seek to have it overturned and the worker reinstated without penalty, and the arbitrator may eventually decide there was grounds to discipline the worker, but that termination was unreasonable in the circumstances and then substitute some lesser penalty (e.g., a short suspension).

This coding allows us to visually (and statistically, I suppose) represent arbitral decisions like so. Yellow are union wins, green are mixed results, and blue are employer wins.

Note that, in this representation, both the union win and the mixed outcome category result in the worker being better off than they were before the decision. This suggests that looking at the “employer win” category (blue) is a useful way to get a quick and dirty sense of decision patterns.

The graphic above summarizes all decisions. The literature suggests that different types of disputes (e.g., discipline and termination grievances, salary and benefits grievances, grievances addressing seniority, selection, promotion and layoff) will have different win-loss patterns. I have teased apart the data that we have along these lines in the graphic below. Sorry the images are a bit har to read, the lines (top to bottom) are grievances addressing seniority, selection, promotion and layoff, salary and benefits grievances, discipline and termination grievances, and the overall average.

We do seem to see some interesting differences. Note that, in the discipline and termination decisions, the employer typically bears the onus (at least initially) or proving discipline was warranted. In most others kind of grievances, the union bears the onus of proving the grievance should be upheld.

If the “who you get affects what you gets” hypothesis is correct, we should see differences among the decision patterns of different arbitrators. I have presented below a randomly drawn selection of the early data in this regard (carefully anonymized) with the overall average at the top.

What this suggests is that there appear to be large differences in decision outcomes among arbitrators. Two important caveats are worth keeping in mind. This first is that the number of cases in the dataset to date for each arbitrator varies and is, overall, small. Small samples tend to yield swingy numbers, so we shouldn’t jump to conclusions based on a small sample. These differences may attenuate over time as we add cases (although we’re not seeing that yet in the data)

The second is that the facts of each case almost certainly impact the decision of the arbitrator. Our expectation is that, over many cases, differences between cases should attenuate (i.e., wash out) these case-specific differences. Together, these caveats also suggest that eliminating arbitrators with relatively few recorded decisions from the final dataset is likely appropriate.

When we look at arbitrator records on discipline and termination cases (which seem to be the largest single category of cases), we see similarly large differences among arbitrators. I have not visually presented that data, given the small number of cases for each arbitrator.

-- Bob Barnetson

Thursday, February 2, 2023

AU sacks its president, but problems continue

Yesterday, Athabasca University terminated the employment of its president, Peter Scott, and appointed the dean of health disciplines as its fourth president in three years (cough, cough). The university has declined to explain why it chose to pay Scott half a year’s salary to go way. According to the Board chair’s content-free and nearly incoherent statement:
Dr. Scott did his part in the puzzle and we're moving forward with Dr. Clark just to continue to grow the university.
Internally, this is seen as political payback (likely orchestrated by the UCP government) for Scott’s opposition to the UCP’s demands that the university locate jobs in the university’s home town of Athabasca. Among the people I have talked to, there are several themes emerging.

First, the timing of the announcement (weeks after Scott’s wife died) is rightly seen as cruel and heartless, which is pretty much on brand for the UCP. The Board chair attempted to explain the timing to the CBC:
Scott's firing by the board comes nearly three weeks after his wife died of cancer. She had just been diagnosed in early December.

"It's terrible," Nelson said. "We have given him some time to deal with that before today."

"Unfortunately, the business of the world, including the business of Athabasca University, goes forward," he said.

"This was a step we had to make. I will continue to treat Dr. Scott with all the respect that he deserves and he does deserve respect in this time."
This reads like "we had a plan to sack him awhile ago, but when his wife died, so we had to wait until the heat was off." This is grossly indecent behaviour and is a real "mask-off" moment.

Second, none of the workers seem particularly upset by Scott getting the boot. The “highlights” of Scott’s time at AU include signing a lockout notice to help the government drive rollbacks during a sham round of collective bargaining and then turning around and stupidly fighting a stupid fight with the same government over the jobs in Athabasca issue. There is, indeed, a palpable level of glee watching a boss get treated as badly as he treated the staff and calls for more bosses to get the boot.

Drawing on (I presume) beauty-pageant conventions, the Board then appointed a runner-up from the last competition as the new president. The latest president faces a lot of big problems.

Enrollment is falling which means the university, after implementing every saving and revenue-generation strategy it could come up with, is still $5m short going into the next fiscal year. There appears to be no coherent explanation for this decline and, consequently, no real plan.

Last week, program directors were told that they would need to review hundreds of invalid and unreliable student evaluations and then use this garbage data to make changes to their courses. Presumably, the logic was that enrollment declines are, at least in part, the fault of faculty course design choices.

Then the next day that plan was scrubbed. That example is part of a consistent pattern of spastic and ill-thought out management decision-making, where staff are basically treated like rental cars (i.e., pin the gas, hammer the brakes, slam it into the curb, who cares about the damage). Years of this kind of shoddy leadership plus the demands of COVID have result is catastrophically low morale, deep cynicism, and burnout.

The university has not yet released the results of its staff survey in the fall (gee, I wonder why…?) but evidence of how bad the results are all around us. Some staff are burning themselves out trying to keep pace with the relentless demand. Some staff are outright quitting. I would say the largest number are just quiet quitting and doing the minimum. I don't know how you turn that kind of deep disengagement around. 

The university’s biggest initiative is the Integrated Learning Environment (ILE). This is basically a software system (called Brightspace), which is supposed to replace our current teaching platform (called Moodle) and other IT systems. AU runs 800+ courses and all were supposed to be migrated to Brightspace by the end of March.

As of last week, about 20 courses had been successfully migrated. From what I can tell, these are all very simple, low-enrollment courses (like one or two students). Another 250 are underway, but about 50 of these are “on hold”, which seems to be code for “oh shit, Brightspace can’t do what we need it to and we don’t know how to fix it.”

This failure to launch seems to reflect that the bosses didn’t do a good job of selecting the new software or grasping the difficulty the migration entails (because they don’t really know how the place works and they don’t trust the staff who do). I am hearing talk that it may take up to two more years to complete this transition.

The new president could make some major gains in credibility by just admitting the ILE project failed and firing the execs in charge of the mess. This might also save the university enough money that it could avoid what is increasingly looking like layoffs. I don’t hold much hope of that because the sunk-cost fallacy is basically AU’s operational mantra.

-- Bob Barnetson

Wednesday, January 25, 2023

Notice of termination vs severance

One of the challenges of teaching students about interpreting collective agreements is the effect of clauses is often very hard to know because they can interact with other clauses in the collective agreement as well as other regimes of employment law. As part of a research project, I came across a 2011 decision that is a fun read about termination notice and severance pay.

The decision is:

Canadian Energy Workers Association v ATCO I-Tek Business Services Ltd, 2011 CanLII 81659 (AB GAA)

You can find the decision on by searching the CanLII number (81659). CanLii is an excellent repository of Canadian law.

The basic facts are these:

  • The employer was outsourcing a significant number of positions and this resulted in significant number of terminations.
  • The collective agreement gave the affected workers rights to (1) working notice (or pay in lieu of notice) under Article 30 and (2) severance under Article 32 and a Letter of Agreement.
  • The union argued that the permanent workers were entitled to benefit from both sets of rights; the employer argued that workers were only entitled to severance.
  • (There was a second issue around a worker signing a release that isn’t really all that interesting.)
The union’s argument was (loosely, I’m paraphrasing in the interest of space) notice is designed to give workers a chance to find alternative employment while severance is compensation for their investment in their workplace that is lost upon termination. Essentially, these two are complementary, rather than alternative, entitlements.

The employer’s argument (again, loosely) was that the entitlements are mutually exclusive and applicable in different circumstances and this the benefits do not compound. Reading the provisions as complementary creates an excessive benefit for the workers.

I won’t spoil the ending for you. The panel’s decision flows from an interesting exploration of the purpose of each of the rights in the contract, the language used, and the effect they have for different employee groups. This decision is a relatively simple example of this kind of inquiry, that occurs in many contract interpretation grievances.

The ultimate decision (that I found to be surprising) highlights how parties can negotiate provisions that each finds acceptable without mutually working through the actual operation of those provisions. This can reflect the nature of bargaining (where ambiguous language may be a strategy to, for example, defer a fight), the complexity of language (which can give rise to legitimately different interpretations), and the impact of practical constraints (e.g., bargaining is often done under the gun by very tired people who sometimes make errors of omission).

-- Bob Barnetson

Thursday, January 5, 2023

How OHS sentences are determined

Many labour-side practitioners assert that the financial penalties levied against employers that violate occupational health and safety rules are so low that they do not serve as a deterrent to future violations by the same or a different employer (basically, they are just the cost of doing business). In some jurisdictions, employers can be subject to modest tickets or administrative penalties for violations. Where an employer has done something serious, they can also be subject to prosecution under OHS legislation. 

Pleading or being found guilty can result in fines being assessed by the court within whatever range is set in the legislation. Section 48 of the Alberta’s OHS Act, for example, sets the maximum penalty for a first-time violation at $500,000 (plus a 20% victim surcharge) and/or not more than six months of imprisonment. (In theory, employers can also be charged under the Westray provisions of the Criminal Code, but that basically never happens. Similarly, jail time for an OHS prosecution is almost never imposed.)

There were 11 (or maybe 12, see below) convictions in Alberta under the OHS Act in 2022:
  • Precision Trenching Inc pled guilty to a 2018 trench collapse fatality and paid a fine of $275k.
  • Insituforms Technology Inc pled guilty to a 2019 serious injury and paid a fine of $100k.
  • Emcom Services Inc pled guilty to a 2019 serious injury and was fined $86k. (This conviction appears twice on the list, but I think that is an error).
  • Amyotte’s Plumbing & Heating Ltd pled guilty to a 2019 fatality and was fined $170k.
  • Joseph Ogden pled guilty to a 2019 fatality and was fined $80k.
  • Trentwood Ltd pled guilty to a 2020 fatality and was fined $150k.
  • The Town of Picture Butte pled guilty to a 2020 serious incident and was ordered to pay $87k in creative sentencing.
  • Kikino Metis Settlement pled guilty to a 2020 serious incident and was ordered to pay $8.5k in creative sentencing.
  • McCann’s Building Movers Ltd pled guilty to a 2020 fatality and was fine $320k.
  • Polytubes 2009 Inc pled guilty to a 2020 serious injury and were ordered to pay $100k in creative sentencing.
  • Cross Borders Consulting Ltd pled guilty to a 2020 fatality and was fined $324k.
This is a pretty typical year in terms of numbers and fines. Often employers face multiple charges and, as we saw in 2022, plead out to a single violation and fine.

A recent Saskatchewan Court of King’s Bench sentencing decision following a workplace incident that left a worker paralyzed is helpful in understanding the factors used when the Court’s determine fine levels. The maximum fine available to the judge in Saskatchewan was $1.5 million. Paragraph 12 sets out the factors commonly used to assess penalties.

[10] R v Westfair Foods Ltd., 2005 SKPC 26, 263 Sask R 162 [Westfair Foods] is a seminal case in Saskatchewan for the sentencing of corporations for OHS violations causing injury. At paragraph 38, Whelan J. distilled the essential principles from the case law and academic works as follows:

i. The primary objective of regulatory offences is protection and in the context of occupational health and safety legislation, it is the protection in the workplace of the employee and the general public.

ii. The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest sense and includes specific deterrence, general deterrence is a paramount consideration.

iii. There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstances of each case. The following is not an exhaustive list of factors that may be considered, but they are likely relevant to most occupational health and safety offences:
  • the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and the extent of its activity in the industry or community;
  • the scope of the economic activity in issue - the value or magnitude of the venture and any connection between profit and the illegal action;
  • the gravity of the offence including the actual and potential harm to the employee and/or the public;
  • the degree of risk and extent of the danger and its foreseeability;
  • the maximum penalty prescribed by statute;
  • the range of fines in the jurisdiction for similar offenders in similar circumstances;
  • the ability to pay or potential impact of the fine on the employer's business;
  • past diligence in complying with or surpassing industry standards;
  • previous offences;
  • the degree of fault (culpability) or negligence of the employer;
  • the contributory negligence of another party;
  • the number of breaches - were they isolated or continued over time;
  • employer's response - reparations to victim or family - measures taken and expense incurred so as to prevent a re-occurrence or continued illegal activity, and;
  • a prompt admission of responsibility and timely guilty plea.
This decision also helpfully discusses the law on sentencing when government amend legislation to raise fine levels. Paragraph 18 quotes the Nova Scotia Supreme Court’s decision in Hoyeck:
[25] … For Courts to give "the legislative intent its full effect" we cannot be bound to prior sentencing ranges that do not reflect the Legislature's view of the gravity of the offence and society's increased understanding of the severity of the harm arising from the offence (see paras. 108-109). An upward departure from prior precedents is appropriate to arrive at a proportionate sentence.
As set out in Paragraphs 24 and 25, the Saskatchewan judge fined King Stud $126k (effectively one year of net proceeds) to be paid of a time period to be determine later. The range of fines
[24] A total penalty (fine and surcharge) of roughly one year’s net proceeds to the principals of the corporation, with time given to pay, is a proper balancing of all of the factors in this case - including the fact that, other than its early guilty plea, virtually none of the Westfair Foods factors are in King Stud’s favour, and some of them (such as its compliance record before and after this incident) are strongly against it.

[25] Such a fine will be a very significant penalty to the principals of the corporation but should not be so debilitating as to cause the collapse of King Stud. Will it be extremely uncomfortable for them for several years? Undoubtedly; but not nearly so uncomfortable as the rest of Dawson Block’s life will be for him, as a result of their actions or inaction.
It’s hard to know if this fine will cause the employer (which had an appalling safety record before this entirely foreseeable injury) to alter its behaviour or serve as a deterrent to other employers. I’m pretty skeptical. These were bad actors who got busted after the fact for yet another fall protection violation.

An interesting part of the discussion was the court’s efforts to set the fine at a level that served as a deterrent but was not so high that the owners of the corporation just walked away from the corporation (and thus the fine goes unpaid). The impact of limited liability corporations to shield owner-operators from some or all of the consequences of the corporation’s actions is a recurring bugbear for enforcing employment laws.

Perhaps, rather than further raising fine maximums (which seems to have a modest impact on actual fine levels) and perhaps fine minimums, legislatures might consider piercing the corporate veil to hold directors personally liable for unpaid OHS fines?

-- Bob Barnetson

Thursday, December 1, 2022

AU and Government sign a new IMA, but what does it mean?

Yesterday, Athabasca University and the government finally agreed upon a new Investment Management Agreement (IMA). This IMA purports to address demands by residents of Athabasca (and later by the government) that AU ensure an adequate number of jobs be located in Athabasca. You can read a quick summary of this protracted and public dispute on my blog post from last week.

I have not yet seen a copy of the IMA (they are usually posted on institutional websites) but there have been announcements by the government and by AU President Peter Scott. The image below (which is apparently a copy of some of the performance-based funding metrics AU has agreed to as part of the IMA) has also been circulated on Facebook (sorry about the low quality).

Update 2022.12.14: The IMA is available here.

A few observations are helpful to understand this image:
  • Metric 4 requires AU to have 252 staff working in the Athabasca region full-time by March 2023. A few caveats are warranted. This metric does not require staff to (1) work on campus, (2) live in the area, or (3) define how “working in the Athabasca region full-time” will be assessed (this may be set out in a document to which I don’t have access). I am told 252 is the present staff count, so no action by AU is immediately required. Note that there is a tolerance of 3 in the first year, so AU can actually reduce the number of staff working in the region in year one. By March 2025, AU has to increase the number by 25 full-time staff. A net 10% increase over three years is a very modest target, representing a shift of about 2% of AU’s 1200ish workers.
  • Metric 5 requires AU to have 44% of its 9-member executive team working in Athabasca by March of 2025. The same caveats as above apply, which we can add that it is not clear (4) if these 4 can count towards the Metric 4 goal of 25, and (5) who defines a member of the executive. The university’s website list of executive members includes the presidents’ chief of staff (who already lives in town) and executive assistant but omits 3 VPs (1 in Calgary and 2 in BC). This list looks like an effort to game this metric by excluding people who perform actual executive functions and pad out the exec with people who don’t. 
  • Metric 6 requires the Board, by December 31, to direct the president to cease implementation of the near-virtual strategy and implement a new strategic plan that expands the university’s physical presence in the town of Athabasca. A couple of thoughts occur to me: (1) the near virtual plan will be fully implemented by the end of December so directing the president to “cease implementation” at that point is meaningless, and (2) expanding the physical presence doesn’t necessarily mean more jobs being located in town. AU is telegraphing some kind of research centre located in Athabasca, which would likely meet this requirement regardless if anyone ever uses it.
  • A portion of AU’s government funding (rising eventually to 40%, last I heard) is contingent upon AU meeting these metrics. The 3% in the top left corner of metrics 4, 5, and 6 is the weighting they are given in the funding calculation. Update 2022.12.14: The 3% refers to the percentage of overall government funding at risk with this metric. So, if AU gets $47m of its $160m in revenue from that government and 15% of that $47m ($7.5m) is at risk in 20223/23, missing either of location-based targets (worth 3% each) would potentially institutions the $1.41m. But, apparently, the location-based targets don't operate until 2023/24 t. So the financial incentive tied to meeting these very modest metrics is pretty weak. 
On the surface, this looks like a victory on the jobs issue and, certainly, many actors are framing it peace in our time. It certainly seems to offer some prospect of slowing the erosion of AU jobs in the community. It might even result in some small job growth. That said, having been victimized by AU and UCP gaslighting before, I’m inclined to be skeptical.

On the issue of jobs in Athabasca, we have:
  • modest, ill-defined, and easily gamed jobs targets,
  • that require no immediate action,
  • backed by modest penalties, 
  • that will not take effect until long after the next provincial election, 
  • when there will be a different minister (more on that below), and
  • likely a different government, which may re-negotiate or just dump performance-based funding and the associated metrics all together.
So, an uncharitable interpretation of the IMA is that it offers little of substance around ensuring jobs remain in town. If I were one of the local politicians who put their name to glowing comments about the deal in last night’s government press release, I might be asking some hard questions.

Specifically, I might be asking why the minister agreed to such a modest IMA. Did the minister really understand the implications of what he was signing? And, if so, why did he give AU a way to simply rag the puck on the jobs issue for another two years?

One explanation might be that the Minister got dumped into this fight by former Premier Kenney, who championed the jobs issue when we have trying to collect enough votes to keep his job last spring (and, when he didn’t, continued to fight to punish those who defied him) and the Minister (or the new Premier) just wanted a way out without losing too much face. So maybe he talks tough, signs a weak deal, declares victory, and move on? Alternately, maybe the Minister and his handpicked group of Board members got sold some snake-oil by some savvy eggheads. We’ll probably never know.

Whether the community can sustain its efforts to secure AU jobs in Athabasca in the face of an apparent (albeit possibly hollow) victory is hard to say.

Returning to the question of the Minister, one of the tidbits I’ve heard over the last few days is that some actors within the UCP are hoping to have “a better candidate” get the UCP nomination in the Minister’s riding of Calgary-Bow for the 2023 election.

I have absolutely zero insight into UCP politics. But it would be pretty funny if the ”better candidate” turned out to be current AU board chair Bryon Nelson. Nelson ran in the 2016 Progressive Conservative leadership race that was eventually won by Kenney as part of his plan to Frankenstein together a conservative party to beat the NDs.

-- Bob Barnetson

Tuesday, November 29, 2022

More on COVID and OHS

Back in September, I blogged about how Alberta’s OHS inspectors seemed unwilling to address uncontrolled aerosol hazards in a workplace. My suspicion was that they and public-sector employers were facing political pressure from the government to ignore the risk posed by COVID to workers.

In October, an Alberta court ruled that the Minister of Education’s direction to school boards banning mandatory masking was ultra vires (she would need to enact a regulation). A month later, the UCP cabinet passed a regulation banning masking mandates as well as barring schools from switching to online-only classes. 

At the time this regulation was passed, schools were seeing unprecedented levels of staff and student absenteeism due to illness (due to a combination of COVID, RSV, and influenza—all airborne illnesses). Barring masking and online classes removed two very effective ways employers can control the spread of these diseases and protect workers (and children) from serious (and potentially fatal) illness.

Yesterday, Premier Danielle Smith announced that MLAs are calling organizations that are in receipt of government funding and asking them to rescind mandatory vaccine mandates. (At this point, vaccination provides modest protection against contracting COVID but does a good job attenuating the consequences of getting COVID. This still makes vaccination a useful component of any hazard--control strategy.).

According to CBC, Smith said:
"For instance, the Arctic Winter Games wanted $1.2 million from us to support their effort and they were discriminating against the athletes, telling them they had to be vaccinated," Smith said at a news conference in Edmonton on Monday.

"So we asked them if they would reconsider their vaccination policy in the light of new evidence and they did."
There was no indication what “new evidence” was offered to this organization. And, while no formal policy linking receipt of funding to rescinding vaccine mandates appears to exist (yet), the implicit threat to current and future funding is pretty clear.

At this point, I think the data is clear that public-sector employers have been told to (and, in some cases, legally enjoined from) taking the steps necessary to control occupational diseases. The government is also likely interfering in the enforcement of OHS laws (although the evidence here is more anecdotal). Not surprisingly, the result is a high level of avoidable work-related illness:

The data in the table above understates COVID claims in the public-sector because teachers are, for the most part, outside of the ambit of workers’ compensation legislation in Alberta.

What can workers do? Well, worker can wear masks, although single-person masking is much less effective than group masking. Workers might also get together and agree to group masking in the absence of employer support.

Work-refusal are also an option. But, since OHS seems unwilling to engage with aerosol hazards, refusals are likely to only work if they are carried out by a group that is prepared to risk sanction for engaging in an illegal strike. I see no appetite for supporting this kind of job action in Alberta’s labour movement.

Finally, workers can remember that the UCP was happy to sacrifice their health and their lives (and the health and lives of their children) in order to cater to anti-vax voters and cast their ballot in the next election with that in mind.

-- Bob Barnetson

Monday, November 21, 2022

Update on Athabasca's jobs fight with the government

Earlier this summer, I wrote about a fight between Athabasca University (on the one hand) and the government and residents of the town of Athabasca (on the other). The nub of it is that AU has been moving jobs out of the town for years, to the detriment of the local economy. (AU was moved to Athabasca in the 1980s to, in part, spark regional economic development.)

After years of AU ignoring the concern of local residents, a lobby group (funded by the town, county, and individuals) formed and it convinced the government this is a problem. Subsequently, the government directed AU to develop a plan to return jobs to the town. AU has repeatedly told the government to go pound sand. This month, things seem to be coming to a head.

In roughly chronological order, here are the details:
  • June 2022: As directed, AU provided a plan to the government that, in the government’s view, does not address its expectations. No one knows what was in this plan because both sides, while fighting about the issue publicly, are keeping all the documents secret.
To be fair, this demand was impossible to achieve. There is inadequate housing and office space and there are complicated contractual issues with forced relocations. It is maybe best seen as the province staking out an aggressive bargaining position. The faculty association sent the minister a letter with several ways to address the government’s concerns. AU seems intent on ignoring its staff's idea (gasp!).
  • August 2022: As the government’s deadline for AU to sign the IMA approached, the Minister appeared at a public Board meeting and indicated (1) some willingness to compromise on outcomes but (2) limited patience with AU’s obvious stalling. The threat was that, if some version of the IMA was not signed, the government would begin withholding funds.
  • September 2022: AU failed to provide the government with detailed strategies or concrete commitments to achieve the government’s goals. This is likely AU stalling in the hope that the early October departure of former Premier Kenney (and maybe the Minister) would alter the political landscape and reduce the pressure on AU.
  • October 2022: Right before Kenney’s departure, the government replaced a number of Board members. This is likely an effort by the government to break the current impasse by (1) stacking the Board and (2) showing the remaining Board members what will happen if the Board continues to resist (i.e., crucify one and the rest will get Jesus). It may also be a bit of political payback by Kenney. In the resulting cabinet shuffle, the current Minister retained his portfolio (ruh-roh, Raggy).
  • November 2022: In early November, the Minister asked AU to convene a special Board meeting that he planned to attend in order to get the IMA signed. AU has resisted this, likely to buy time to inoculate new Board members against the Minister. Late last week, the government sent a new IMA to the Board (which has a bottom-line feeling to it) which requires 10% increases in local employment each year for the next three years and half the executive to move to and work from town. Since we haven't seen the new IMA and don't know the base number, it is hard to know how many new people would need to hired. If there is 300 people in town, that would be about 100 more over three years. 
Update 2022/11/23: Yesterday on CHED, the Minister twice said the demand was for 5% annual increases, which would reduce the local hiring. He also indicated 44% of executive will need to be based in two by 2024. Forty-four percentage suggests 4 members of a 9 member executive. Who counts is an interesting question.
I’m hearing that a Board meeting with the Minister will be scheduled late next week, ahead of (or in lieu of?) the regular December 9th meeting. It is unclear if the President will be in attendance. As someone who is potentially affected by the government’s directives, both the Conflicts of interest Act and AU’s own Board Conflict of Interest policy appear to require the President to recuse himself from this decision.

It is interesting to contrast the public positions of the government and AU’s President (presumably on behalf of the Board). The government has been unwavering in its view that AU needs to commitment to significant job gains in Athabasca. AU keeps pointing to its (inadequate) June 2022 plan and has layered on the idea that jobs can be brought to the region via the creation of some kind of ill-defined research centre.

I’m skeptical of the research centre idea. It won’t likely bring permanent residents to Athabasca (which is the underlying issue), but rather transient researchers. It may also bring no one because it is basically a “build it and they will come” proposition. In the end, no one will really be responsible and accountable for ensuring its success. This seems to be another version of stalling.

In the meantime, Athabasca-based staff are being told to clean out their offices as AU pushes its near-virtual (i.e., no one on campus) strategy. AU has also opened “hotelling” (drop-in) space in Athabasca, but in a room that the locals call “the dungeon”. The rest of the buildings are a ghost town, which raises the question of why the drop-in space isn’t in a nicer location.

Meanwhile, back on the ranch, some sleuthing has turned up that at least two members of the AU executive live in BC, one in Ontario, and one in the US. The rest appear to be located in the Edmonton and Calgary regions. This may, in part, explain the executive’s reluctance to acquiesce to the government’s demands (including that they move to town).

So where do we go from here? Here are four possible end games:

  • AU acquiesces: The new Board could sign some version of the IMA and possibly direct the executive to abandon its near virtual plan (if that is in the IMA) and set hiring quotas or offering staff inducements to move. Whether the President and other executive would stick around for that, is an open question. Also, plummeting enrollments means AU’s hiring is likely to be curtailed (indeed, there is talk of layoffs) so meeting IMA quotes will be tough. Inducements are an option with additional government funding. 
  • Government buys a pig in a poke: The government may decide AU’s “status quo plus research centre” plan is as good a resolution as it can get. That will cost the UCP votes and it sits uneasily with the government’s focus on rural issues. It would also be a personal defeat for the minister. 
  • AU resists and government dithers: AU may continue to stall (hoping the UCP loses the next election) and the government may continue to let them (perhaps deciding the cost of an actual fight isn’t worth the eventual gain). Again, this would be a personal defeat for the minister, albeit a less visible one.
  • AU resists and government acts: The government basically has two cards to play. First, it can cut off some or all of AU’s government funding (which is about 35% of revenue). AU could ride this out for a year based on its present reserves but, in the end, there would have to be layoffs to cope with the revenue hit. Layoffs would mean fewer jobs, which is not the government’s goal. 
The other option is the government can sack the Board and appoint an administrator. The administrator can then sack the president and the rest of the executive and order whatever policy the government wants. This is not an easy or automatic solution. But the government just sacked the Alberta Health Services Board so it obviously isn’t afraid of the political costs.
I don’t really see how the President of AU keeps his job in any of these scenarios. He has been the face of AU’s resistance. (Interestingly, his contract explicitly requires him to live in or near Edmonton and Calgary.) A departure, perhaps framed as going down fighting for institutional autonomy, is likely and may be his best option to exit. (That is certainly a better narrative for him than “I misread the politics and got outmaneuvered by a plucky and sly bunch of townies”).

Other executive departures are also likely. In addition to the whole jobs fight, there are two issues lurking just off stage that may set up a house cleaning. Staff were surveyed about their impressions of AU and its executive last month. The quantitative indicators have not been released yet and AU will likely not release the comments (under the guise of protecting privacy). But the comments that have been shared with me have been excoriating. The last question, for example, was “what is one thing AU’s exec could do to improve things?” Almost every answer I saw was some version of “Quit”. There is almost zero faith in the executive’s abilities or its intentions.

The second issue is the implementation of AU’s new Integrated Learning Environment (ILE). The ILE was the centre-piece of AU’s current “Imagine” strategic plan. The roll out has been delayed several times and is now going to a phased roll out (which staff are calling “death by a 1000 cuts”) because major operational issues have not yet been sorted and the current (overtaxed staff) will now be maintaining our existing systems as well as rolling out the new one, possibly for years.

The root problem here seems to be that the AU executive, in speccing out the system, did not listen when staff, who actually understand how AU runs, said (repeatedly) “uhhh, have you considered X?” Now that we’re knee-deep in launching the new system, all of those things staff flagged are suddenly cropping up as (surprise!) big, big problems. This is, ultimately, a management failure and warrants a house cleaning all on its own.

-- Bob Barnetson