Monday, February 20, 2023

UNA staffers change bargaining agents

Two weeks ago, 45 staff members at the United Nurses of Alberta (UNA) voted to leave the Steelworkers Union and be represented by the Union of Labour Professionals (ULP), an independent union that the workers formed. The impetus for this change in representation was questions about whether being a part of Steel was the best fit and in the unit's best interests. There were concerns about autonomy and financial transparency, and the catalyzing event was Steel’s perceived interference with the operation of the bargaining unit during a dispute with the employer.

I’d originally planned to use this event as the jumping off point for a discussion about the tension between worker choice and union cartel behaviour and the politics of raiding. But the story itself also proved to be pretty interesting, providing insight into how unions can cause and respond to member dissatisfaction. So I decided to foreground the story.


The Steelworkers represented what I’ll call the professional staff at UNA (as distinct from the clerical and administrative staff) by virtual of a voluntary recognition agreement between Steel and UNA. The skills of the bargaining-unit members (i.e., union staffers) means that the unit is mostly self-sufficient in terms of bargaining, grievances, and other membership servicing tasks. For the most part, then, the unit was left alone by Steel manage its internal affairs (which was sesible for the unit).

During COVID, UNA staffers began working from home. In mid-2021, when UNA called the staffers back to work in the office, the bargaining unit asked UNA to negotiate some flexibility and terms around working from home. UNA said “nope” and referred matters to the next round of bargaining (which was imminent). The workers never did go back to work in the office that year.

Later, bargaining started and, while the unit tried to negotiate some flexible-work language, once again UNA called the workers back to the office. Calling the workers back to the office, according to the bargaining unit, constituted a change in the terms and conditions of work during bargaining, something employers are prohibited from doing.

The bargaining unit filed an unfair labour practice complaint against UNA about this change during the “freeze period”, after telling Steel they were going to, and getting a provisional blessing. Subsequently, a different Steel representative decided the bargaining unit did not have the authority to file an unfair and ordered the bargaining unit to withdraw it. The bargaining unit basically said “yeah, no” and Steel reconsidered.

UNA’s response to the unfair questioned whether the bargaining unit had standing to file an unfair at the Labour Board. Steel’s submission also seemed to question the unit’s standing to file the unfair, which sat poorly with many members of the bargaining unit.

This interference in the unfair crystallized long-term dissatisfaction among many members of the bargaining unit and triggered an organizing drive to replace Steel with an independent union. (The acronym of the Union of Labour Professionals (ULP) is also a commonly used acronym for an unfair labour practice complaint.)

Selecting a Different Bargaining Agent

Alberta’s Labour Relations Code, like labour laws in all Canadian jurisdictions, allows unionized worker to periodically revisit their choice of which union will be their bargaining agent. During these “open periods”, workers can:
  • take no action and thus remain represented by their existing union, 
  • have a different union apply to be certified at their new bargaining agent (colloquially called a raid), or 
  • file a revocation application to become a non-unionized group of workers. 
In Alberta, both raids and revocations both entail votes of the member of the bargaining unit, with the majority of voters determining the outcome.

The policy rationale underlying open periods is that they hold unions accountable to their members by giving the members the option to periodically revoke their consent to be represented by the union. This option backstops other union accountability mechanisms, such as union’s internal democratic structures (that workers can attempt to use to change union policy) and unions’ duties to fairly represent members during grievance handling.

Steel’s Reaction

When ULP filed a certification application with the Alberta Labour Relations Board, the Steelworkers took steps to try and retain the bargaining unit as a Steel unit. Additionally, some members circulated information to bargaining unit members about the effect of a decertification vote, including that the collective agreement with the employer would be terminated. This is a pretty typical tactic designed to highlight the costs of leaving the union.

This gambit ran into two problems:
  1. this was a raid, wherein a new union would inherit the collective agreement, not a decertification, wherein the collective agreement is terminated, and
  2. the members of the bargaining unit (i.e., union staffers) were savvy enough to know that. 
Steel then held two “decertification” meetings with the bargaining unit. Typically, a union will use these meetings to highlight both the reasons members might want to stay with them (e.g., access to a large strike fund) and the costs of leaving the union.

The accounts of the meeting I have is that Steel had no coherent presentation and said just wanted to learn about the concerns of the members. Given that a certification had been filed and a vote was likely, this seems like a mis-step: things were well beyond “tell us about your concerns”.

This approach also ceded the initiative to the bargaining unit members, who demanding to see financial statements related to their dues and policies around access to the strike fund. The answers provided by Steel were partial and unsatisfactory and further galvanized support for leaving.

It also opened the door to a member querying whether Steel would be raising objections to the certification application at the Labour Board or would let members democratically decide the matter. The framing of this question neatly backed Steel into a corner (i.e., agree to raise no objections or look anti-democratic) and, in the end, Steel agreed to not raise any objections.

The eventual vote was 29-13 in favour of leaving (about 69%) and the Labour Board recognized the ULP as the new bargaining agent. ULP then served notice on UNA to bargain (or continue bargaining from where Steel left off—that seems to be a bit up in the air at the moment). As the vote suggests, not every member was thrilled with the decision to leave Steel and/or to join an independent union.

The Politics of Raiding

Raiding (when one union tries to recruit members who are already represented by another union) is an extremely contentious issue within the Canadian labour movement. The argument against raiding basically come to down to raiding being divisive (i.e., pitting unions against one another, when they should be cooperating) and wasteful of resources (which could be better spent on servicing members and organizing unrepresented works). There is also concern about the de-stabilizing effect of large-scale raids on the raided unions (which lose dues revenue when they lose members).

Many unions are affiliates of the Canadian Labour Congress (CLC) and affiliates are often referred to as being a part of “the House of Labour”. This terminology is essentially a legitimacy claim that throws shade at non-affiliated unions, suggesting that they are in some way suspect (more on that below). The CLC’s constitution bars raiding by its member affiliates. Article 4.5.a states:
Each affiliate respects the established collective bargaining relationships of every other affiliate. No affiliate will try to organize or represent employees who have an established bargaining relationship with another affiliate or otherwise seek to disrupt the relationship.
The CLC constitution also sets out a process for handling efforts by members of CLC-affiliated unions who seek representation by a different union. These provisions basically serve as an impediment to workers changing bargaining agents by bureaucratizing the process and disincentivizing affiliates from seeking to represent such workers.

In this way, the bar on raiding prioritizes union stability (which is not an inherently bad thing) over worker choice. Workers, of course, retain their statutory right to seek a different bargaining agent during an open period and, at times, CLC affiliates have left the House of Labour (e.g., Unifor in 2018) as a result of raiding (and/or in order to raid).

To navigate these circumstances (wherein no union with “the House of Labour” was likely to agree to represent them, given that Steel was already the recognized bargaining agent), UNA staffers decided to create their own non-affiliated union. This new union may (or may not) decide to affiliate with the House of Labour at a later date.

Non-affiliated unions exist throughout Canada. They are sometimes criticized as being lesser unions, perhaps subject to employer domination and/or unable to provide competent representation and support. Sometimes this criticism seems to ring true, such as with the Christian Labour Association of Canada (CLAC). Other time, such as with the Alberta Union of Provincial Employees, it doesn’t.

In this case, I don’t see much reason for concern. The ULP comprises staffers of a trade union (UNA), who are, by virtue of their professions, able to provide skilled representation. They are also, by virtue of their dispositions, unlikely to be employer dominated. Other union staff in Alberta (such as those who work for the Alberta Union of Provincial Employees) are also represented by independent unions.

If there is a legitimate potential concern about ULP’s ability to serve its members, it might be that the union has not yet accrued significant financial resources to, for example, allow it to provide its members with strike pay. Given the relatively high pay of ULP members, this is unlikely to be a significant barrier to job action, should the union take it. Further, the members of ULP are pretty sophisticated about union matters and would have considered that risk when they decided to cast their vote.

-- Bob Barnetson

Wednesday, February 15, 2023

Inventive framing of grievances

Typically, when we teach undergraduate students about grievances and rights arbitration, we assume the alleged breach of the contract is obvious and therefore skip over the importance (in practice) of careful grievance framing. This reflects the need to simplify the grievance arbitration (which is pretty complex) in order to not overwhelm students who are new to the process.

As part of a research project, I came across a 2012 case that highlights how the framing of a grievance can be very important to whether or not a union is successful. The decision is:

Canada Safeway Ltd v United Food & Commercial Workers Canada Union, Local No 401, 2012 CanLII 58574 (AB GAA)

You can find the decision on by searching the CanLII number (58574). CanLii is an excellent repository of Canadian law.

The basic facts are these:
  • An employee of a grocery store was caught stealing three chocolate bars (valued at $6.37) from the store at the end of his shift. This behaviour is both a violation of employer policy and a crime.
  • An employer loss-prevention officer apprehended the worker in the parking lot. The employee was returned to the store and interviewed by security.
  • The employer failed to provide the worker with union representation, which was required by the collective agreement. During the interview, the worker admitted the theft.
  • When the company learned the interview had taken place without union representation, it discounted all information from the interview, sought to re-interview the member with a union representative present, and, when the union said “yeah no”, the employer terminated the worker based upon the testimony of a witness to the theft.
The union could have grieved this, arguing that discipline was warranted but the penalty was too harsh. Usually stealing results in termination, but the facts (e.g., low value of theft, worker had a significant cognitive disability, worker admitted theft immediately) might have resulted in a reduced penalty. Or maybe not. Instead, the union framed the grievance as a denial of union representation and sought damages for the griever and for the union (in lieu of reinstatement). We don’t know why the union framed its grievance this way, but we can guess a bit.

To start with, the facts were better for a representation grievance than for a termination grievance. The worker stole the chocolate bars in front of a witness. (My first thought reading that as a former grievance officer is “oh yeah, you’re fucked buddy.”) Arbitrators generally view theft in the dimmest of terms (essentially extinguishing the relationship of trust necessary in an employment relationship). Fighting the discipline (despite the possibly mitigating factors) would be a tough slog for the union.

The employer’s error (not providing a union rep) pushes aside the context (i.e., theft) and triggers the fight on much better terrain for the union. Union representation was a clear requirement of the collective agreement and arbitrators generally come down hard on employers who deny worker union representation. In this case, the admission of theft during the interview also opened the worker to potential criminal charges. (If he’d had a union rep, the rep would have terminated the interview and gotten the griever a lawyer.) And the employer’s efforts to remediate the disciplinary process are a de facto admission of the violation.

There is also the issue of available remedy. If the union had won a grievance on the termination, about the best they could have done given the facts was reinstatement (maybe with back pay, but probably without). There is also some hint that the worker did not wish to return to the job.

Under the representation angle, the union sought $10,000 for the worker in damages and $25,000 for the union. If the union won the representation grievance, it stood to attach significant financial and reputation costs to the employer’s conduct (which hopefully would affect the employer’s behaviour going forward).

(There was also the matter of the jurisprudence around theft changing at this time and this was a good case to test whether an older approach, that favoured employers, was still valid. We don’t know if that was in the union’s mind at the time, but maybe it was, since employee theft is a recurring basis of discipline in the retail industry and getting a favourable interpretation of the jurisprudence would be useful to the union in the long term.)

In short, there was a better chance of winning the representation grievances and a much bigger upside to doing so than of winning a termination grievance. This case suggests that experienced union-side advocates, when faced with an apparent violation of a worker’s rights, will often ask themselves “what kind of grievance is most likely to be successful?”

-- Bob Barnetson

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