Activists not allies: Organizing in a distributed workforce

This blog was previously published on the Organizing Work blog.

Bob Barnetson describes a campaign by his faculty association at Athabasca University, a public, higher education distance learning institution in Alberta. During a contract fight, the union made the bold move of just mobilizing members for pickets and not relying on community supporters.

In 2017, my 400-person union faced a crisis as a result of new labor laws. For the prior 30 years, bargaining impasses had been resolved by a combination of interest arbitration over wages and a “stonewall” clause over language (i.e., absent agreement, the existing language continued). This resulted in a disengaged membership that viewed bargaining as primarily a technical exercise and would rarely take direct action against the employer.

New laws imposed by a putatively labor-friendly government meant an immediate switch to strike-lockout for faculty associations across our province (including some who were well into bargaining). Like the other faculty associations, my union had no credible strike threat. Not surprisingly, Athabasca University opened the next round of bargaining seeking a wage freeze and serious rollbacks in working conditions backed by the spectre of a 24-hour lockout. These aggressive demands were part of a broader employer strategy of union busting.

A key part of my union’s response to the move to strike-lockout was to engage and mobilize our members in order to create both a credible strike threat and, more broadly, a base of power in the workplace. In addition to a culture of passive unionism, a major challenge we faced was that half of our members worked from home offices spread across the country while the other half worked on campuses in three different cities. The employer’s aggressive bargaining position—a position much more aggressive than required by the government’s mandate of a freeze on the lost of living—created an opportunity to agitate among a relatively privileged set of workers. We then moved towards educating the members about ways that they could push back.

We began with low-risk actions, such as running a series of straw polls. Each week, we would outline one of the employer’s proposals and its implications in an email. We’d then poll our members on whether they would accept such an outcome. These polls were a dress rehearsal for a strike vote. We used the results to agitate and to demonstrate to the employer that, if they really wanted each proposal, they were going to have to chance a lock out. Over time, the employer withdrew or otherwise abandoned these proposals.

Our broader goal, though, was to lay the groundwork for direct action that was not mediated through the union. In particular, we were interested in developing a set of picketers to normalize the behavior (since a work stoppage was looming) and exert public pressure, in the hope of forcing an acceptable contract on the employer. We began by hosting a series of picket sign-making lunches, where we encouraged staff to repurpose university slogans and logos.

Our picketing goals were twofold: (1) to get 100 different members (25% of the unit) out to at least one information picket, and (2) to increase the size of the information pickets each time. While we had access to allies—both from other unions on campus and in the broader labor movement—we decided early on not to rely upon allies for picketing. Although many allies turned up and their support was helpful and heartening, our goal was always to build our own power base, where none had existed, rather than stretch existing labor power by embroiling allies in yet another dispute. Relying mainly on our own members for picketing demonstrated—to both the members and the employer—that we were able to mount a strike if necessary.

Over the space of four months (March to June), we staged four information pickets. Our first picket of a Board of Governors meeting saw 14 members and 1 ally force Board members to sneak in the back door. A second picket saw 32 members (including 27 first-timers) and 5 allies picket in conjunction with the 19th (!) day of bargaining. A third picket (at the Board Chair’s place of business) saw 20 members (including 12 first-timers) and 4 allies make the Chair’s employees and customers aware of how badly she was allowing us to be treated. Our final picket saw 35 members (including 10 first timers) and 20 allies picket a university meeting during the downtown lunch rush in Edmonton, much to the surprise of the university executive. (The high numbers of allies reflects that the university paid these staff to be onsite that day.) An acceptable contract was concluded shortly thereafter.

While we didn’t fully meet our numeric member engagement goals, we did achieve the strategic goals: thwarting the employer’s rollbacks, both by demonstrating we had a viable strike threat and attaching reputational costs to the employer’s bad behavior. More subjectively, the pickets built up the confidence of the members in expressing their dissatisfaction and in realizing that they were not each alone in their opposition to the employer’s terrible behavior. We were very careful to inoculate members about potential employer countermoves. As it turned out, the employer was unable to mount any kind of effective countermove.

Normalizing activism and having an internal group of activists proved important a few months later when the employer escalated its union-busting strategy by taking advantage of Alberta’s unusual labor laws to try and carve two-thirds of our members out of the unit. We immediately organized member actions including petitions, a march on the boss, disrupting four meetings, and an email campaign that applied a lot of social pressure, to support our legal and media campaigns. This issue remains ongoing.

As we head into another difficult round of bargaining, we’re focusing on generating buy-in to our proposal so that members will support making gains, not just defending existing rights. Changes to past practice have included more member engagement in proposal development, members ratifying the opening proposal, regular surveys and blog posts about member issues, and one-on-one telephone contact with members.

While our allies, particularly among the other unions on campus, have been very helpful in our confrontations with the boss, in the end our power flows from the willingness of our members to take actions that attach costs to the employer’s behavior. Our assumption is that, if the cost of bad behavior is high enough, the employer will behave differently. Workers, not allies, can generate the highest costs to employers. Social disapproval, work slowdowns, and work refusals are powerful tools—arguably more powerful than grievances and media campaigns—to resist employer attacks. These require focusing on mobilizing our own members, not coat-tailing on the power of other unions.

-- Bob Barnetson

Bill 32 reduces workers' overtime choice and pay

This blog previous appeared on the Canadian Law of Work Forum.

Alberta is proposing changes to its Employment Standard Code that would permit employers to evade paying overtime (OT) premiums to workers by stripping workers of their right to refuse to participate in overtime averaging agreements. This has the potential to move hundreds of millions of dollars in OT pay from workers’ pockets to employers’ profits.

Background

Like all Canadian jurisdictions, Alberta has set limits on hours of work. In most cases, Alberta restricts work to a 12-hour window (ESC, s.16(1)). Alberta also normally requires that employers pay an overtime premium (1.5 times wage rate) if workers work for more than 8 hours in a day or 44 hour in a week (ESC, s.21). The policy rationale for limiting hours of work and requiring OT premiums centre on ensuring workers’ quality of life, reducing the safety risks associated with worker fatigue, and incentivizing additional hiring.

Alberta also allows employers and workers to enter into overtime averaging agreement (ESA, s.23.1(1)). Averaging agreements allow an employer to average the hours worked by a worker over a period of time when calculating whether the worker has met the weekly OT threshold and is entitled to the OT wage premium. Presently, overtime agreements can specify averaging over a period ranging from one to twelve weeks. Averaging agreements allow for workers and employers to agree to compressed work weeks (e.g., four ten-hour days instead of five eight-hour days) without triggering the OT premiums.

Any overtime paid out at the end of the averaging period is paid at a rate of 1.5 times normal wages. Although the legislation is slightly unclear on this, government policy asserts that time off taken in lieu of OT is paid at straight time. Here is the government’s existing summary of the average agreement device.

Proposed OT Changes in Bill 32

Bill 32 (Restoring Balance in Alberta’s Workplaces Act) was introduced in the legislature in early July. If passed, this bill will make a large number of changes to both the Employment Standards Code and the Labour Relations Code. Relevant to this post, Bill 32 will allow employers to impose OT averaging agreements on workers with two weeks notice (Bill 32, s.1(11)) unless there is a collective agreement in effect. Presently, workers must agree to overtime averaging.

Bill 32 will also increase the period of time over which OT can be averaged from 12 weeks to 52 weeks and do away with the two-year limit to such agreement and loosen the rules around changes in work schedules (which otherwise require 24-hours of notice).

These changes provide employers with oppportunities to evade paying OT premiums. For example, the weekly overtime threshold is 44 hours. If a worker works a 60-hour week (say six 10-hour days), they would normally be eligible for 16 hours of pay at over-time rates. Under an overtime averaging agreement, those 16 hours could be averaged (i.e., spread across) up to 52 weeks (roughly 20 minutes per week). This would spread the OT far enough not to engage the 44-hour weekly OT threshold (the daily OT threshold can be evaded under averaging agreement).

Under such an agreement, a worker could work up to 208 OT hours a year (i.e., more than five extra weeks) and the employer would never have to pay any OT premiums. The changes effectively guarantee that very few, if any, non-union Alberta workers will ever receive overtime pay, unless the employer agrees to pay it as an act of altruism or a job perk. Further, when a worker is entitled to be paid OT under an averaging agreement, that pay may be delayed until the end of the averaging period (now as long as 52 weeks).

Bill 32 also compounds 2019 changes to how banked OT is paid out. Under those changes, a worker who enters into an OT banking arrangement (which is notionally voluntary, but practically up to the employer) and wishes to take banked time as time off with pay (instead of being paid out), does so at straight time.

Analysis

The amendments proposed in Bill 32 will enhance employers’ opportunities to avoid paying OT premiums. When the government makes it easier for to require over-time work without paying workers the over-time premium (as it is with Bill 32), the government is effectively transferring money from workers’ pockets to employers’ profits. Statistics Canada data from 2018suggests that there is roughly $3.3 billion in over-time premiums annually.

Rationally, every employer should enter into an OT averaging agreement. Not every employer will be able to do so. Unionized employers will remain subject to whatever their collective agreement says (this covers about 20% of the workforce in Alberta). Other employer may not be sophisticated enough to operate an agreement. There is no credible way to estimate the value of the transfer from workers to employers, but the annual amount is likely to be in the hundreds of millions of dollars.

Minister Copping framed these changes as “expanding choice for workers”in a Calgary Herald op-ed, noting:

…some workers may prefer to work four 10-hour days, instead of five eight-hour days. Then, they could receive three-day weekends. But changes made by the previous NDP government effectively made it difficult for employers to set up these schedules… .

This is the precise spin that conservative governments across the country have used to justify legal rules that permit employers to avoid overtime pay. In this framing, Copping fails to note that (1) under the present system, workers (as a group) have the opportunity to choose (or refuse) flexible schedule, and (2) Bill 32 takes away that choice by vesting decision-making with the employer. He also ignores that employers can manipulate this system to evade paying overtime premiums and that that long shifts increase the risk of injury to workers.

-- Bob Barnetson

OHS inspections show high levels of noncompliance

A few years back, some colleagues and I surveyed 2000 Alberta workers about injury and safety. One of our findings was that only about half of employers complied with basic OHS requirements, such as performing a hazard assessment.

A hazard assessment is a written document that identifies hazards in the workplace and how the employer intends to control those hazards. It is required by law. It is important because employers can only control those hazard that they identify.

The study found only 50% of employers had a hazard assessment. This is a pretty shocking level of non-compliance. Not surprisingly, there was some eye rolling and quiet suggestions that we were out to lunch. The politest criticism was that “how would workers know if there was a hazard assessment?”

Questioning the validity of studies is part of a well-known set of employer strategies to delay dealing with OHS issues. It comes after denying there is an issue and before employers buy their own study to show there is no problem.

So, a couple of years go by and then I ran across this graphic in the August 2020 issue of Alberta’s OHS e-news.

The crux of it is that OHS inspections of new employers during 2018-19 found pretty high levels of non-compliance around hazard assessments (50-59% in the four worst-offender industries). It is important to note that these findings were for new employers in industries where OHS visited 10+ times and these were the worst-performing industries. This means we shouldn’t carelessly generalize from these findings to every employer.

That said, I have three thoughts. First, these findings provide some support for our 2016 findings of 50% noncompliance with hazard assessments. Since these findings reflect inspections (where employers either were or weren’t able to produce a hazard assessment), one can’t argue them away as simply worker (mis)perceptions.

Second, that these inspection results generated similar results to worker surveys, suggests that worker surveys may actually generate valid and reliable data about employer practices. That is to say, workers do actually know what is going on in the workplace in terms of safety.

Third, the worst industries for not having met the most basic OHS requirement—beauty parlours and school, restaurants and catering, food and convenience stores, and hotels—are many of the same industries that will benefit from Alberta looseningits child labour laws.

Specifically, Alberta is loosening the rules for 13- and 14-year-olds to allow them to do more restaurant work and light janitorial work. (The exact details on this as still sketchy, but 13-year-old janitors sounds pretty dumb no matter what the details.) So, basically, the UCP is sending vulnerable kids into workplaces that we have good evidence to indicate they don’t abide by OHS rules.

-- Bob Barnetson

Alberta WCB review foreshadows worse compensation for injured workers

Alberta is consulting about changes to the Workers’ Compensation Act, putatively in response to stakeholder concerns about 2018 changes made by the NDs. The UCP government is examining worker benefits, return to work, how to distribute any surplus in the accident fund, and a significant number of issues related to governance and processes.

The survey foreshadows some changes:

• Maximum insurable earnings: In 2018, the maximum insurable earnings cap was removed. Previously, injured workers would get 90% of their lost wages up to a cap of about $100k. The UCP seems to be looking at the return of a cap, which will negatively affect injured workers with high incomes.
• Inflation: Presently, benefits are indexed to Alberta’s consumer price index to offset the erosive effect for inflation. The UCP appears to be suggesting CPI minus 0.5% is appropriate to account for “measurement error” in CPI. Under-adjusting benefits for inflation will particularly harm workers with long-term or permanent wage loss.
• Presumptive status for psychological injuries: Presently psychological injuries that occurred at work due to traumatic events are presumed to be compensable unless proven otherwise. Presumptive status exists because proving causation is often difficult with non-acute physical injuries resulting in work-related injuries going uncompensated. I expect we’ll see traumatic psychological injuries no longer being deemed as compensable.
• Maintaining health benefits: Employers are required to maintain workers’ health benefits for up to a year if the worker is on WCB. Since this requirement as implemented, eight employers have found to have violated the requirement. The UCP seems to be flirting with allowing employers to cut workers and their families off from things like dental and vision and drug care when workers are injured (and experiencing an income drop). This seems terribly cold hearted.
• Interim relief: Workers can presently apply for interim relief to avoid financial hardship while the appeal a decision (generally to cut off their benefits). The UCP is asking if this is really necessary. Such relief is necessary to avoid injured workers being unable to make rent or feed their kids. Jesus Christ, already.
• Reinstatement: Workers have a right to reinstatement to this job at time of injury for 12 months after an injury. Employers refusing to reinstate or terminating a worker without reason is presumed to be retaliatory and penalized. This 2018 change was made because employers would often refuse to reinstate and efforts to pursue duty to accommodate cases through human rights was an ineffective remedy. The UCP appear to be considering returning things to 2018, where employers could basically dump injured workers with no consequences, although this exception may be limited to small employers (who comprise the vast majority of employers in Alberta).
• Termination on modified work: Presently, injured workers who get fired while on modified work, are returned to compensation (since they still have an injury-related wage loss). “Stakeholders” (i.e., employers) want these workers cut off WCB benefits, likely to reduce employer claims costs (which drive premiums). The courts say such a proposal is not cool, so why is Alberta exploring this?
• Accident fund surplus distribution: The WCB needs to maintain an accident fund with enough dosh to cover the current and future costs of current injuries. The accident fund is funded by employer premiums as well as returns on investments made by the WCB (since the fund has a lot of cash sitting in it). Sometimes, the fund is in surplus. When the fund is at 114% of estimated total liabilities, it is considered to be fully funded (this gives some slippage to cover injuries that occur today but are not yet recognized, such as diseases). When the accident fund is at 128% funded, the excess is used to fund safety and disability management work. Some of it can also be distributed to employers (although there have not been any distributions since 2017 since the find has not been in surplus). The UCP seems to be considering ways to restart employer distributions by lowering the thresholds for fully funded and/or for distributions. This has the potential to allow today’s employers to foist injury (specifically disease) costs onto tomorrow’s employers.
• Shorter appeal timelines: Presently, worker have two years to file an appeal of a decision. This two-year period reflects that may appellants are not sophisticated and may also be dealing with the effects of an injury. The UCP appears to be looking at shortening the timeline to one year. There is no indication that extending the timeline to two years (in 2018) resulted in any negative effects. Solving a non-problem in a way that will reduce worker access to appeals seems dumb.
• Benefit of the doubt: Where the evidence in a WCB matter is approximately equal, the Act gives workers the benefit for the doubt (i.e., is applied in the workers’ favour). This reflects that the point of workers’ compensation is to compensate workers, not to split hairs and screw them when the facts are a bit uncertain. The UCP is soliciting ideas about how to change this; the resulting suggestions are almost certain to result in worse outcomes for injured workers.
• Occupational disease review committee: The Regulation sets out certain occupational disease that are granted presumptive status (i.e., if you worked in the industry and get the disease, you get compensation). Prior to 2018, the list of diseases had basically been left unreviewed for 35 years (excepting some additions around firefighter cancers). In 2018, a periodic review process was established. The UCP is now asking if that is necessary.
• Physician choice: If the WCB requires a worker to undergo an independent medical exam, the worker chooses a doctor from a list of specialists maintained by the WCB. The UCP is proposing eliminating the workers’ option to choose in order to speed things up. Oddly, the WCB reports that 93% of workers choose a doc as soon as the decision is put to them and, for the rest, the 1-3 days they take to make a choice does not delay the assessment (because of how booking occur). So, again, we have the UCP trying to solve a non-problem at the expense of workers.
• Lost-time claims: Some employers are seeking the option of paying the first 2 or 3 days of a workers lost time (instead of it being paid through the WCB) in order to avoid a lost-time claim that will affect their ability to bid on projects. Changing the legislation to accommodate bad screening practices in private-sector bidding is crazy and opens up more room for employers to suppress injury claims than already exists. This change would also disproportionately benefit employers with the worst lost-time claims records by effectively allowing them to hide these injuries through direct pay and then moving them to modified work (whether real or bogus).
• WCB Board members: In 2018, the WCA was changed to require the government to appoint members of the workers’ compensation board from separate lists of people nominated by unions, employers, and the public. The UCP is suggesting this is unduly restrictive. About the only thing this requirement restricts is patronage appointments of unqualified or partisan members.
• WCB Reviews: In 2018, a legislative requirement for periodic reviews by committees comprising stakeholder representatives were enacted. The UCP appears to be considering eliminating the need for commissioners to be nominated by stakeholder communities. This is a terrible idea and will lead to stacked panels. How would the UCP have reacted if the previous WCB review was staffed entirely by union types?

Overall, this consultation looks designed to rollback important changes to the WCB that the NDs made. The foreshadowed changes will benefits employers and harm workers. This consultation is open until August 10.

-- Bob Barnetson