Tuesday, October 11, 2016

Submission on faculty collective bargaining

The Government of Alberta is currently consulting on amendments to the framework that governs collective bargaining for faculty in Alberta's public colleges, universities and technical institutes. This consultation was sparked by the Supreme Court's 2015 decision re: strikes as constitutionally protected activity. This is my individual submission. You can make a submission here.

Dear Mr. Sims,

Thank you for the opportunity to comment on the Faculty and Graduate Students Labour Relations Model Review.

I’m a professor of labour relations at Athabasca University. From 1996 to 2001, I worked for the Alberta College-Institute Faculties Association. Since 2007, I have been involved in collective bargaining and grievance handling with the Athabasca University Faculty Association. During the intervening years, I worked for the Alberta Labour Relations Board and the Alberta Labour.

The study guide correctly identifies a number of issues with Alberta’s current model of faculty labour relations contained in the Post-Secondary Learning Act (PSLA). While, in theory, it might be possible to resolve these issues by inserting the required provisions of the Labour Relations Code into the PSLA, the more parsimonious solution is to make faculty subject to the Labour Relations Code.

In answer to the specific questions posed:

2. Faculty should be subject to essential services legislation because some faculty have responsibilities that, left untended, could result in profound harm to the public. That said, the argument made by some student associations that instruction is an essential service is ridiculous. Certainly instruction is important, but its temporary cessation (however inconvenient) does not “endanger the life, personal safety or health of the public” and is not “necessary for the maintenance and administration of the rule of law or public security.”

3. The least disruptive approach to bargaining agent status is to deem existing associations as the bargaining agents and then allow faculty association members access to the certification and revocation rights accorded to every other worker in Alberta.

The argument advanced by some employers that current associations (many of which have been representing their members for 40 years) ought to have to win a certification vote to be deemed the bargaining agent is sophistry intended to start a kitchen fire in the house of labour while the employers head to the barn to try and rustle some horses during the ensuing chaos.

Similarly, the argument advanced by some faculty associations that all un-organized employees should be automatically made members of a bargaining unit is equally silly. If workers wish to join a union, they can do so under the certification procedures in the Public Service Employee Relations Act or (after the new model is enacted) under the Labour Relations Code. If a union wishes to represent such workers, it can organize them.

5. My experience with designation is that employers use designation to advance their collective bargaining objectives (e.g., “if you want sabbaticals for librarians, we’ll just de-designate them). No other employers have this power because of the fundamental conflict of interest it entails. Faculty members are workers and the Labour Relations Board has adequate skills and experience to determine what is an appropriate bargaining unit.

6. The current wording of the PSLA makes General Faculties Councils (GFCs) subordinate to Boards of Governors. The precise legal meaning of those provisions in the PSLA may be somewhat ambiguous, but subordination is the effect of the current wording. Consequently, giving GFCs a role in determining bargaining unit status basically means giving the Board that power and this returns us to the conflict of interest issue I flagged in my response to Question 5 above.

9. The Labour Relations Board is competent to adjudicate the ins and outs of a bargaining unit. At Athabasca University, the inclusion of deans (who are effectively managers) in the bargaining unit creates profound difficulties for the faculty association in representing members and their interests. This is precisely the conflict of interest in the membership that the statutory exclusion of managers is designed to avoid and it should be left to the Labour Relations Board to adjudicate disputes.

11. There are no matters that should be excluded from the ambit of collective bargaining. Every other worker has the capacity to negotiate the full range of terms and conditions of their employment. I see no compelling argument that faculty members should be precluded from doing so.

A recurring theme at the consultation I attended was that employers desired a clear distinction between so-called academic and employment matters. The solution to this is to clarify and expand the autonomy of GFCs. When GFCs appear to be subordinate to Boards on clearly academic matters and Boards take actions contrary to the wishes of GFC, it shouldn’t be surprising that faculty members then seek to have their interests heard and addressed in some other venue (e.g., collective bargaining and grievance arbitration).

While Boards might avoid such problems by respecting the traditional autonomy of GFCs over academic matters, recent history suggests Boards struggle to exercise such self control. Consequently, a legislative “fix” to this governance problem is required. Giving GFCs the power to make academic decisions will reduce the pressure that faculty associations experience from their members to take action on so-called academic issues.

17. The statutory reset option is the cleanest option. It provides a clear deadline after which bargaining will take place in the new model. The date of this reset should be far enough into the future that faculty associations have adequate time to build a strike fund and other union infrastructure. The specific situation I worry about if the transition period is short is employers locking out unprepared faculty associations in order to gut contracts.

18. Athabasca University academics mostly work from home offices. Some of these home offices are located in other provinces. It would be useful to consider whether these faculty members will be considered to be in the bargaining unit. The Labour Relations Code does not seem to preclude this (whereas the Public Service Employee Relations Act does explicitly preclude it) but some clarity would be useful.

The Labour Relations Code excludes certain professionals (when employed in their professional a capacity) from the definition of employee (and thus from the bargaining unit). This includes architects, dentists, engineers, lawyers, nurse practitioners, and physicians. Whether teaching is considered being employed in one’s professional capacity may vary between these occupations. Further, some professionals will clearly be employed in their professional capacity while working for a PSE institution. In other jurisdictions, these professionals are generally included in the academic bargaining unit. It may be necessary to provide an exception in the Code to allow these faculty members to continue to be members of a faculty association.

To conclude, I think the most sensible pathway forward is to move faculty association collective bargaining under the Labour Relations Code.

Thanks kindly

Bob Barnetson
Professor, Labour Relations
Athabasca University

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