Resisting company doctors through moral suasion

Unionized workers can make gains and stave off concessions by attaching costs to employer behaviour in the hope that the employer will decide to behave differently.

Most often, we think about strikes. Strikes attach primarily financial costs to employer intransigence at the bargaining table by disrupting production. If the strike causes the employer enough pain, the employer tends to compromise.

Moral suasion is a different way to attach costs to employer behaviour. Athabasca University’s (AU’s) unsuccessful efforts to impose company doctors on its academic staff provides a useful example of this tactic and its limitations.

AthabascaU’s demand for company docs

In 2018, AU pushed its workers to agree to new contract language around company doctors. Essentially, the employer wanted to be able to send a worker for a so-called independent medical examination (IME) if:

• the worker used sick leave frequently or for a prolonged period,
• the employer believed the worker was unable to do their duties due to illness or disability, or
• the employer believed a worker was mis-using their sick leave.

This proposal would give the employer a largely unfettered ability to impose and IME upon pain of discipline and/or loss of sick leave. Such a power would:

• interfere with workers being able to choose their own health-care providers,
• open the door to illegitimate employer demands for non-therapeutic medical examinations, and
• would end-run the requirement for the employer to get an arbitrator’s order to require an IME. 

Seventy-seven percent of union members were opposed to this proposal. Of particular concern to the union’s members were the possibilities of:

• worker fear of being sent to an IME might cause them to not use their sick leave when its use was medically required,
• when workplace harassment had caused a worker’s performance to deteriorate or the worker to go off sick, the employer might weaponize the IME process to further harass the sick member, and
• the medical opinion of a company-paid doctor may result in a refusal of sick leave or the alteration of work restrictions set out by the worker’s treating physician.

The employer’s rationale for this proposal was cost-savings (i.e., no arbitration hearing required). In fact, the proposal shifted costs from the university (lower financial costs) to the worker and their families (less privacy and greater stress).

There was, of course, no evidence of any meaningful level of sick leave abuse. A review of 15 years of union files (with a membership of more than 400 workers) identified one case where the university officially raised concerns about the accuracy of medical information provided to the employer. This was conern was resolved.

Pushing back on company docs

Resisting company doctors could certainly form part of the basis for a strike mandate. But there is always the risk that members might be willing to accept company-doctor language as part of a package deal (i.e., if the employer offered something good in exchange) or to avoid a strike (if company doctors was the only major issue). Given this risk, the union opted to explore a different approach first.

The company-doctor proposal was obviously repugnant. The union also suspected it was being driven by the desires of the HR shop, rather than being a core mandate from the university’s Board of Governors (which was the ultimate decision maker). These factors opened the door to applying moral pressure on Board members to abandon the proposal.

Activists identified 15 members who (1) were secure in their jobs, (2) had experience with ill-health that required medical leave, and (3) had a reasonable degree of political acumen. The union then used its membership map to divide them into five three-person groups based on pre-existing relationships.

Each team was tasked to write a five-paragraph letter to individual Board members (the union provided contact details). The first and last paragraphs were boilerplate, respectively introducing the issue and asking the Board to drop its proposal.

Each team member wrote one of the middle three paragraphs, disclosing their personal experience with medical leave and explaining how the company-doctor proposal would have affected and harmed them. The letters were heart wrenching and drove home the odious nature of the Board’s proposal.

The union coordinated the members sending their letters such that Board members received a new letter every week. The Board members eventually concluded that their negotiating team’s proposal truly was not worth pursuing because, shortly thereafter, the employer’s chief negotiator said “company doctors (suddenly!) wasn’t a hill to die on” and the proposal fell away.

Analysis

This example illustrates one (of myriad) ways that workers can attach costs to employer behaviour and, thereby, possibly change it. The costs attached by the letters were mostly emotional. Few people (even employers!) enjoy being shown how their behaviour will profoundly and personally harm others.

The Board members may also have been concerned about being publicly and personally associated with such a disgusting and harmful proposal. That threat was not contained in the letters, but was an obvious next step and was part of the union’s overall escalation strategy.

Having workers write about their very personal experiences of ill-health appeared more effective at driving home to the employer how awful the proposal was than were the union’s broader communications about the proposal. The pressure exerted by the letters was applied discretely enough that there was no real loss of face for the employer in doing so.

The union members, both those directly involved and those who simply heard about the tactic, got to see how they could take effective action to protect their own interests. This built confidence among the members in their ability to resist employer demands and advocate for themselves.

A weakness of this tactic is that it creates the possibility of a rapid reversal by the employer. For example, if the employer catches even one worker malingering or faking sick in the future, it is likely to bring this proposal back to the table. And, because the employer will feel like it got emotionally manipulated into withdrawing the earlier proposal, the employer will likely pursue the renewed proposal vigorously. In this way, both the employer and the union now have a shared interest in ensuring no workers malinger.

-- Bob Barnetson