Hollywood strikes highlight undercurrent of violence in labour relations

Two strikes, one affecting writers and the other actors, have brought most Hollywood productions to a stand-still over the past two months. 

You can read a summary here but the gist is major studios are trying to cheapen work in order to gain a greater portion of the surplus value generated by labour.

The bosses’ strategy, at least with respect to the Writers Guild of America, appears to be simply starving out the workers. According to Vanity Fair, the bosses expect writers to run out of money by October and, once the workers are facing homelessness, they will resume negotiations and press for concessions. Starving workers until they give up is an age-old employer tactic.

Actor Ron Perlman, in a now deleted video, reacted to the bosses’ plan this way:

The motherfucker who said we’re gonna keep this thing going until people start losing their houses and apartments — listen to me motherfucker. 

There’s a lot of ways to lose your house. Some of it is financial. Some of it is karma. And some of it is just figuring out who the fuck said that — and we know who said that — and where he fucking lives.

There’s a lot of ways to lose your house. You wish that on people? You wish that families starve while you’re making 27 fucking million dollars a year for creating nothing? Be careful motherfucker. Be really careful. Because that’s the kinda shit that stirs shit up.

Perlman’s statement got quite a lot of media play because it is out of step with most people’s understanding of how contemporary strikes play out (basically people stop working and walk around with signs until the boss decides to negotiate). Suggesting that bosses might face violent, real-world consequences for trying to get even richer by economically destroying workers’ lives is pretty uncommon these days.

That hasn't always been true, though. Underlying every job action is the potential for violence. Often it has been used by bosses to bust a strike. But, occasionally, workers will destroy the bosses’ property or attack them directly. The post-war labour compromise in Canada has attenuated this risk, in part by strictly regulating strikes and strike behaviour.

But, when the bosses refuse to negotiate in good faith (or the system looks otherwise completely rigged against them), worker commitment to obeying labour law may fray because it is no longer in their interest to do so.

We most often see this dynamic play out in wildcat strikes. But worker frustration doesn’t have to be channelled in that direction. A worker or smnall group of workers could, as Perlman hints, just destroy a boss’s house or yacht or factory or mine or whatever.

It is worthwhile for both bosses and workers to pay attention to the potential for this kind of behaviour as they strategize how to bargain. Bosses who decide to play hardball, may be opening Pandora’s box. And worker may be overlooking a significant source of leverage by discounting alternatives to picketing.

-- Bob Barnetson

Reflections on Unifor's strategy during Regina's Refinery strike

Andrew Stevens and Doug Nesbitt recently published an article entitled “Refinery town in the petrostate: organized labour confronts the oil patch in Western Canada" (this article does not yet appear to be open access). This piece examines the lengthy strike and lockout at the Co-op refinery in Regina in 2019 and explores three main themes.

First, it examines how the union’s long-term approach to bargaining (which the authors term conciliatory and cooperative) left the union unprepared to cope with an aggressive employer intent upon driving major concessions into the union’s agreement (this is likely an important finding or many unions…). This included taking significant steps (e.g., building a camp to house a scab workforce) to ensure that a lockout of workers would be successful.

Second, it explores how the state and employers colluded to limit the union’s ability to effectively apply pressure on the employer through traditional and legal means (e.g., striking, picketing) through court injunctions and demands that workers’ picketing behaviour be treated as criminal. Allied employers also began demanding further legal constraint of picketing activity.

Third, the paper examines the effectiveness of civil disobedience and building solidarity networks to apply pressure to the employer in the face of collusion between the state and the employer and profound anti-union sentiment. The state’s response to union tactics that infringed upon the employer’s property rights included imprisoning union leaders and demonizing the union as an outsider. Of particular interest in the article is the analysis of how community support for the oil and gas industry benefitted the employer’s efforts to grind the compensation of workers.

The authors suggest that a more thoughtful approach to community engagement an the deployment of civil disobedience tactics by the union might shift the terrain of future disputes and increase the union’s leverage.

-- Bob Barnetson

Complaint over “Mafia-esque” union Xmas cards resolved

An unfair labour practice complaint, alleging Christmas cards sent by a union to the employer’s bargaining team amounted to “Mafia-esque” intimidation, provides insight into the unexpected impact that Alberta’s restrictive picketing laws may have on union pressure tactics during bargaining.

Alberta’s picketing laws

In 2019, the United Conservative Party (UCP) formed government in Alberta. In the summer of 2020, the UCP passed Bill 32: Restoring Balance in Alberta’s Workplaces Act (2020). This act substantially restricted picketing activities by:

• rendering it illegal to obstruct or impede someone from crossing a picket line,
• requiring a union to seek Labour Board permission to engage in secondary picketing, and
• allowing the Labour Board to determine the conditions of any secondary picketing.

These changes effectively rendered legal picketing ineffective and effective picketing illegal. This, in turn, reduced the ability of workers and unions to exert pressure on the employer to move at the bargaining table (which was the intent of the legislation).

Christmas card “intimidation”

Athabasca University Faculty Association (AUFA) served notice to bargain in the spring 2020. By the late autumn of 2021, the employer had not yet provided its monetary proposal and bargaining was stalled. The union began applying pressure in order to generate movement. For example, it filed a bargaining in bad faith complaint with the Labour Board. This proved predictably ineffective due to delay in getting the matter to hearing in a timely way.

The union also began experimenting with the alternative strike tactics that it had developed, in part, because of Alberta’s restrictions on effective picketing. These tactics included choking-off revenue by applying reputational pressure. The first effort was a 12 Days of Christmas meme campaign based on the song “All I want for Christmas is my two front teeth.” Members tweeted these memes at the employer and its bargaining team.

At the end of the online campaign, the most popular meme was then made into a Christmas card. Copies of the card were mailed to homes of the university president and bargaining team co-chairs. In January of 2022, the employer filed an unfair labour practices complaint, alleging the cards were intended to be intimidating, an implicit threat to the safety of the employer’s representatives and their families, and were a “Mafia-esque” tactic.

In April of 2023, the union and the employer settled the unfair. In this settlement, the union agreed, in future, to collect personal information in accordance with Alberta’s privacy legislation (which it is legally bound to do in any case). The union also “acknowledged that those who received the Christmas Cards and members of their families felt that they had been intimidated and harassed.” This settlement is, I think, best read as saving the union the financial cost of the hearing and saving the employer the political cost of losing.

Analysis

The UCP’s changes to Alberta’s labour laws were intended make it more difficult for unions to exert meaningful pressure on employers via picketing that disrupts operations. The desired effect was to attenuate unions’ abilities to make meaningful contract gains.

These changes do not, however, eliminate the need for workers and unions to exert pressure on employers during bargaining. That doesn’t mean these picketing restrictions have no effect on union power. Rather, they just push unions to (1) develop alternative tactics and/or (2) ignore the law and take whatever punishment that entails.

On the surface, mailing Christmas cards to the boss was a very mild alternative pressure tactic. Yet, it triggered a very strong response from the employer. This reaction may have been an effort by the employer to generate some pearl-clutching and internal dissent within the union membership by equating the union with the mob. Or it may have been designed to generate litigation to trade away against the union’s bad faith bargaining complaint.

The tenor of the employer’s complaint, though, suggests real outrage. (I recognize these explanations are not mutually exclusive.) The memes and cards may have driven home for the recipients that collective bargaining can have real world consequences for bosses (just like it always does for workers). It may also have highlighted that the government restricting traditional picketing activities increases the likelihood that unions will expand their tactics to include applying pressure directly on bosses.

While the overall effectiveness of this sort of pressure tactic remains unclear, the employer’s over-reaction to the Christmas card complaint certainly suggests that bosses intensely dislike even the mildest personal pressure and are surprisingly easy, according to their own complaint, to intimidate. This, in turn, tells unions that they should continue to explore this space.

There is significant room to escalate these forms of personally targeted pressure while still staying within the bounds of legal leafletting activity. And the nothing-burger settlement of the employer’s unfair suggests the cost to the union of using these tactics is low.

-- Bob Barnetson

Labour & Pop Culture: Justice League of America

I ran across a 1964 issue of the Justice League of America (JLA) comic book that appeared to be about unionizing superheroes. The cover shows various heroes picketing, demanding their rights.

The crux of the story line is that The School Master (a particularly lame 1960s supervillain) manipulates the United Nations into prohibiting the use of super powers. This makes the JLA unable to effectively resist a crime spree by a variety of other lame 1960s supervillains (Tattoo Man?).

The JLA is so law abiding that they decide to comply while peacefully picketing. Picketing proves totally ineffective so they turn to direct action. In this case, crime fighting without using their super powers.

Which is a bit of a major plot hole because the impetus for this was that the non-super-powered heroes couldn’t effectively fight these super villains. After many tedious pages, The School Master’s plot of revealed and the injunction is lifted.

Overall, this was pretty disappointing. Some interesting points include the government being manipulated into helping out greedy supervillains, picketing being framed as ineffective, and the heroes turning to direct action.

-- Bob Barnetson

One-Day Wildcat Strike by Alberta Health Workers Likely Just the Beginning

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

Albertans woke up on Monday October 26 to news that support workers at one of the province’s busiest hospitals were refusing to start their shifts and were striking outside the main doors. Soon word spread that almost 1000 workers at up to 45 health facilities in 33 Alberta municipalities had walked out. The workers were members of the Alberta Union of Provincial Employees (AUPE) and perform a range of support services such as laundry, food preparation, janitorial services and other important functions that keep facilities operating.

Energy built through the day, with labour leaders and members of other unions walking the picket line in solidarity. The workers’ collective agreement has expired and negotiations are ongoing, but the union was not yet in a legal strike position. Late Monday night, the Alberta Labour Relations Board (ALRB) declared the strike illegal and ordered striking workers back to work. Here is the decision.

In Alberta, illegal strikes face significant penalties, including fines against the union of $1,000 per day, fines against individual workers, suspension of union dues for up to six months, and possible contempt of court charges. Early Tuesday morning, AUPE announced that all workers had returned to work.

Despite its short duration, this wildcat strike is likely just the beginning of worker action in response to provincial government cuts to health care, so there is value in looking more closely at the strike.

The strike took place as a direct response to UCP government plans to privatize health care support services. On October 13, Health Minister Tyler Shandro announced a plan to privatize laundry, food service, laboratory, and other services, which will result in lay-offs to up to 11,000 health care workers. Just three days before the strike, the first phase of the plan was announced, leading to the lay-off of 425 AUPE members. It should also be noted that these announced lay-offs are taking place as Alberta’s COVID cases are rapidly climbing and COVID-related hospitalizations on the rise.

It is likely this strike is not the last direct action we see from Alberta’s public sector workers. The UCP government is engaging in a series of high-profile conflicts with its workers. A burning war with Alberta’s doctors remains unresolved. The announced health privatization plan is regarded by many as the first step towards a more aggressive move toward American-style health care. Dramatic funding cuts to education, social services, and post-secondary institutions are leading to thousands of layoffs in those sectors. And the government has strongly hinted at demands for wage rollbacks for all public sector workers in current bargaining rounds. On many fronts, public sector workers have reason to be concerned, angry and prepared to take action.

The other illuminating aspect of the strike is the government’s aggressive response to the strikers. Finance Minister Travis Toews issued a statement criticizing the action: “Going forward we expect that all unions respect the bargaining process and stop putting Albertans’ safety at risk. … We will not tolerate illegal strike activity”. He also said the workers and the union would “be held accountable” for the strike.

Asserting that unions should “respect the bargaining process” is difficult to reconcile with the UCP government repeatedly interfering with public-sector bargaining and bargaining rights in the past 18 months. They unilaterally postponed arbitration deadlines that were enshrined in collective agreements. They gave themselves the right to impose binding and secret bargaining mandates on public-sector agencies. They tore up a legally negotiated deal with Alberta’s doctors, imposing a legislated contract. They have passed bills constraining workers’ rights to picket. Their recently passed Bill 32 imposes a series of restrictions on union activity, including limits on the right to strike. Apparently, the government expects unions to abide by the law, no matter how unfair, while at the same time affords itself the right to change rules that are inconvenient for the government.

The wildcat strike and the government’s response to it remind us of the conflict inherent in public sector labour relations. The government is both the employer and the body that sets the rules, establishing a dynamic stacked against public sector workers. It is no surprise that public sector workers see through this conflict of interest and take matters into their own hands when they believe their jobs are at risk.

-- Jason Foster and Bob Barnetson

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

So I almost died on a picket line today...

The City Wide Towing truck that almost ran me down.

There were a bunch of trade unionists leafleting drivers entering the Co-op Gas Bar on St Albert Trail in Edmonton this morning. We were asking drivers to get their gas somewhere else to apply consumer pressure to the Co-op Refinery in Regina. The refinery locked their workers out in early December to try to drive rollbacks into the worker’s pension plans (the refinery is hugely profitably).

It was a pretty routine picket line. Picketers with signs were on the sidewalk alongside St Albert Trail for visibility and to alert motorists intending to gas up that there was a picket line at the station. To get into the gas bar, drivers had to turn off St Albert Trail onto a side street, drive about 75 feet, and then turn into the gas station. The picket line with leaflets was at the entrance to the gas bar. Leafleters had orange jackets and reflective vests.

Picketing works: Empty pumps at Co-op.

The first 90 minutes were quiet—only 13 drivers decided to proceed past the picketers and got gas. Many more decided to go up the street to Shell. Some drivers took leaflets and chatted, others didn’t and were waved through with no wait. (The store is not Co-op owned we just waved those customers through as well.) Overall, a very civilized experience.

About 9:30, a heavy haul tow truck from City Wide Towing turned off the St Albert Trail. The driver was shaking his head at the first line of pickets. He then drive towards the gas bar turn in where he started his turn early and drove right through the picket line without slowing. Fortunately, the picketers saw him coming.

I stepped back about three feet. Because of the length of the tow truck, the rear wheels tracked inside his turn and missed me by only few inches. If I hadn’t have stepped back, he would have clipped and I would have gone under the rear tires. He then got out and beaked off at us and went into the store.

After we wrapped up our picket, I called City Wide Towing and reported the incident. I was told a manager and the safety officer would call me back. I said I’d wait until the end of the day to hear from them. So far, no call.

Driver of the tow truck.

Thinking back, the City Wide Driver pretty clearly targeted the picketers with his truck. There was lots of warning of the picket line, lots of room to slow down and stop, and he could even have driven past the first entrance and come in the back way (another 100 feet down the side street). Starting his turn early and not braking were intentional decisions to buzz the line. There was zero remorse when he got out of the truck.

More surprising is City Wide’s complete lack of response. The employee could have injured or killed me or another picketer. That would have resulted in a police investigation, a lawsuit, and tons of bad publicity for City Wide. Clearly, this employee deserves to get canned.

You can call City Wide Towing at 403 287-9111 (press 1 at the menu) if you’d like to let them know what you think of their driver’s behaviour. Or perhaps we should picket them? :)

-- Bob Barnetson

Is a general strike in the offing for Alberta?

I attended an information picket hosted by the Alberta Union of Provincial Employees (AUPE) last Tuesday. This picket was one of many AUPE is hosting to voice its members’ opposition to Bill 9, which the government passed in order to break collective agreements and stall wage arbitrations for public-sector workers.

AUPE (and other unions) have been organizing pickets all summer. These pickets are designed to channel and publicize public-sector workers’ anger. They also normalize picketing and are useful in identifying and training a new cadre of union activists going into what will likely be a difficult period for unions (legislated wage rollbacks are expected this fall).

The tone on this picket line was notably chippier than the one I attended in July. There were lots of cars honking in support. The only negative feedback I saw was from one (of course) pickup driver. I didn’t catch what he shouted but the shouted response from several female healthcare workers was “I hope you never need anyone to wipe your ass in hospital!”

There were the usual rah-rah speeches. A notable departure from the usual talking points was made by AUPE President Guy Smith who said (and this is a slight paraphrase) these pickets are practice for a general strike because, if the government won't respect our rights and the courts won’t force them to, a general strike is our only option. As an aside, general strikes were the subject of a very interesting analysis by Organizing Work a few weeks back.

Union leaders have studiously avoided talking about an illegal strike in public until now. The Court of Appeal overturning the injunction against Bill 9 and the MacKinnon panel musing about legislated bargaining mandates, back-to-work legislation and the notwithstanding clause may have contributed to this change in tone. Essentially, if the government is set on denying workers any meaningful legal recourse when the government violates the Charter and breaks collective agreements, the only option (as Smith suggested) is to take to the streets.

An interesting question is whether this speech was a calculated warning shot designed to sober up the government, a emotionally driven response to a tough couple of weeks for the labour movement, or an honest communication to workers about where things are heading? I’m inclined to think there is a bit of all three explanations at work.

If you’ve ever crossed swords with him, you’ll know that Smith is passionate and can engage in some… errr… rhetorical excess when he gets pissed off. That’s not to say he isn’t savvy and calculating (he definitely is both those things). Indeed, he may be leveraging the apparent ineffectiveness of legal options as a way to pressure other labour leaders into taking a more aggressive stance than they might otherwise be inclined to.

His comments may also have beeb an effort to warn the government of the consequences of their intended course of action. Jason Kenney’s spat with Amnesty International (of all groups) this week suggests that this kind of warning is likely just going to amp up a government that is already demonstrably intemperate and thin-skinned. I presume Smith knows that. Perhaps Smith is making lemon-aide: there’s gonna be a fight, so its best to goad Kenney into (further) overplaying his hand because a boss who’s being a complete asshole is a great asset to unions.

And telling workers there’s going to be a fight (especially a sympathetic crowd like people who picket after work) is a good way to start inoculating workers against the fear and smear campaign the government will likely run in conjunction with any legislation. It’s also the honest and right thing to do.

-- Bob Barnetson

Rethinking Alberta's essential services legislation

This post original appeared on the Parkland Institute blog.

In January 2015, the Supreme Court of Canada ruled that "[t]he right to strike is an essential part of a meaningful collective bargaining system" and effectively made blanket bans on public sector strikes unconstitutional. As was required of all provinces in the wake of the ruling, Alberta's then-New Democratic Party (NDP) government enacted legislation in 2016—Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services—that granted most public-sector workers the right to strike as long as essential services were maintained.

Alberta's public sector unions were broadly supportive of this change, as the right to strike was expected to incentivize public sector employers to bargain more earnestly than they did when bans on public sector strikes were in place and disputes were resolved by arbitration. That this right to strike was subject to limits to maintain essential services was (at least publicly) described as a fair trade-off.

During the 2019 provincial election, the United Conservative Party (UCP) promised a raft of changes to provincial labour law, including replacing the portion of the current essential services provisions that bars the hiring of replacement workers when there is an essential services agreement (ESA) in effect. The UCP's expected amendments to Alberta’s labour laws to provide an opportunity to reconsider how to best reconcile workers' right to strike with protection of the public interest.

Interests during work stoppages

A work stoppage—either a strike or lockout—is a contest between a union and an employer. Each side applies economic pressure to the other in the hope of achieving a more favourable settlement than it could otherwise negotiate.

Unions apply pressure mainly by denying the employer their members' labour. In the case of a private-sector employers, a strike is effective by reducing the profits of the employer. By contrast, a strike generates political pressure on public sector employers because they are unable to deliver the services they are mandated to provide. In both cases unions generally want as many of their members to be on strike as possible to maximize the pressure on the employer.

The state has enacted labour laws that create significant procedural obstacles to work stoppages. These barriers, such as compulsory mediation, don't ban work stoppages but drag out the process and make it harder for unions to build support for strike action. While these laws formally apply to both unions and employers, in practice they weigh more heavily on unions.

For their part, employers use a variety of techniques to weaken a union's strike power, including hiring replacement workers (sometimes called "scabs"). Scabs allow the employer to keep operating (to some degree) while the striking workers go without a salary. The only limit on the use of scabs in Alberta is a ban on using replacement workers when an ESA is in place.
Alberta’s essential services legislation

Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services amended the Labour Relations Code and Public Sector Employee Relations Act. The key changes were:

• The default dispute-resolution process when public sector bargaining reaches impasse became strike-lockout (excepting firefighters and police officers, who continued to use mandatory arbitration).
• Where employees performed essential services, an ESA had to be negotiated before the parties could access mediation, hold a strike vote or lockout poll, or commence a work stoppage. An essential service was defined as one where (1) the cessation of the service would endanger the life, health or safety of the public, or (2) the service is necessary to maintain the rule of law or public security.
• ESAs are negotiated between the union and employer under the oversight of a commissioner appointed by the government. The parties may engage the services of an umpire to assist them in settling the terms an ESA.

Once an ESA is in place, the employer is prohibited from hiring (or otherwise acquiring the services of) replacement workers during any work stoppage. If an employer is deemed to provide no essential services then there is no prohibition on hiring scabs.

Unlike the other procedural requirements that must be met before a work stoppage can begin, essential services legislation is not formally even-handed. Rather, it is designed to diminish the effectiveness of a strike (and thus the union's leverage) in order to protect the public, which would be harmed if hospitals suddenly closed or the water went off. In contrast, the only part of the existing essential services legislation that in any way diminishes employer's leverage is the ban on using scabs. As previously mentioned, the UCP has promised to repeal this ban on hiring replacement workers.

ESA effects on interests

Alberta's current essential services legislation is far from perfect and appears to have created unexpected and sometimes perverse outcomes. In some cases, the legislation incentivizes employers to seek to evade their obligation to protect the public interest in order to increase their bargaining power, and in some cases effectively renders moot workers' right to strike.

Consider public sector employers that provide relatively few essential services, such as post-secondary institutions. The replacement-worker ban incentivizes these employers to try to avoid negotiating an ESA so the employer can use scabs to undercut the unions' strike power. To the degree that these employers can and do evade an ESA, this incentive undermines the protection of the public interest.

There are, of course, checks and balances in this system. An employer that wants to avoid an ESA must convince the Essential Services Commissioner that the employer provides no essential services. This sounds like a good system, but practically speaking the only way the commissioner would know if the employer was lying is if the union opposed the application. If the union decided not to fight for an ESA, employers could gain an exemption.

A union might choose to not fight for an ESA because such a fight delays the union's ability to move into a strike position. Some public sector employers have been very successful in drawing out ESA negotiations for months by rejecting the need for an ESA or by delaying the disclosure of information necessary to negotiate the ESA. Stalling the conclusion of an ESA undermines workers' right to strike, which is already delayed by other legislative requirements, and can sap a union's capacity to strike. In the meantime, the employer continues operations and the workers do without whatever concessions they were seeking in bargaining.

That unions might not choose to fight for an ESA is a real risk. After six months of employer stalling, my own union had to decide whether we should put the public interest (i.e., advocating for an ESA) ahead of our members' economic interests (i.e., getting to a strike position as quickly as possible). In the end, we decided to protect the public, in part because we also benefited from the scab ban, but that decision could easily have gone the other way.

ESAs and illegal strikes

The ability of employers to delay the negotiation of an ESA also heightens the risk that workers will engage in illegal work stoppages. This is a very real risk in the health- and seniors-care systems, where workers provide many services that are essential. In these workplaces, the essential services legislation incentivizes employers to seek to have virtually the whole workforce deemed essential.

For example, consider a long-term care facility where 85 or 90% of the services have been deemed essential. The tiny fraction of union members who can legally strike can walk the picket line eight hours a day, week after week, in fair weather or foul, but this strike has little chance to succeed because business basically continues as normal. This dynamic undermines the public-policy objective of protecting workers' constitutional right to strike by allowing them only a meaningless strike.

In some ESA negotiations in seniors care facilities, employers have actually argued for a level of staffing during a work stoppage that is higher than the level of staffing with which the employer normally operates. Attempting to find the true level of staffing required to maintain essential services has proven to be an nearly insurmountable problem. Often, whether a task or a job is an essential service is not clear, and employers—who hold most of the information—have an incentive to shade this information. Umpires can be reluctant to rule against employers because the risk of being wrong is that someone could die as a result.

The patience of union members is not endless, and at some point the workers will simply (albeit illegally) walk out. Illegal (or "wildcat") strikes are profoundly disruptive and can bring about the disruption of truly essential services that ESAs are specifically designed to prevent. In these cases, the ESA process itself also undermines the public policy goal of protecting the public. While unions face severe financial penalties for wildcat strikes, they may well turn a blind eye to pending wildcats because they know it may be the most effective to resolve a bargaining impasse.

Analysis and options for reform

Overall, Alberta's experience with ESAs suggests they significantly impede workers' constitutional right to strike. So why did the worker-friendly NDP government enact legislation like this? The answer is likely that the government had to respond to the 2015 Supreme Court ruling while trying to balance the interests of workers and the public. Essential services legislation offers a widely accepted (if ineffective) way to do this. It also creates further barriers to effective and legal public sector strikes—which was in the NDP's interest while in government.

The UCP’s election promise to eliminate the replacement worker ban will have three effects:

1. For employers with few essential services, eliminating the scab ban eliminates one incentive for employers to resist an ESA. Employers may still stall negotiation to delay job action.
2. For employers with many essential services, eliminating the scab ban has no effect on the incentive to seek an overly inclusive ESA or stall negotiation to delay job action.
3. For unions, the removal of the scab ban further undercuts their ability to mount a meaningful strike by giving employers the power to hire replacement workers in addition to being able to stall strikes and negotiate overly expansive ESAs.

The key problem with the current approach is that the process incorrectly assumes that both parties will put the public interest before their respective self-interests. In doing so, it simply creates another venue for employer-union conflict.

Assuming the UCP government follows through on its promise to eliminate the ban on scabs, workers may be better off with an alternative approach to protecting the public interest. For example, employers might be granted a fixed window of time during which they must develop a plan by which to maintain essential services. After this time period has passed, all union members can go on strike or be locked out (assuming the other legislative requirements for a work stoppage are met). This approach ensures the public interest is protected while minimally impairing the ability of public sector workers to exercise their constitutional right to strike. It does this by placing responsibility for maintaining essential services where it belongs: on public sector employers. The employer is best positioned to know what services are truly essential, and the employer can make whatever arrangements are necessary to protect the health, safety, and life of the public, as well as maintain public order.

This might include redeploying managers, hiring replacement workers, and/or negotiating some sort of voluntary and partial coverage with the union. The cost of such arrangements may also incentivize some employers to actually negotiate in good faith (thus reducing the risk of a work stoppage).

While workers would face no onerous legal restrictions on their right to strike, the strike power of unions would remain constrained by:

• some union members crossing their own union's picket line,
• employers aggressively planning to maintain services, and
• public sympathy for strikes waning over time as inconvenience mounts.

The thorniest question about this proposal from the government's perspective is how it can ensure the public interest is protected against an incompetent employer. The government can doubtlessly find ways to require planning and penalize incompetence in the civil service as well as among public sector agencies, boards, and commissions. Should a true threat to public safety arise, it can be dealt with under the public emergency provisions of the Labour Relations Code.

From the perspective of workers, the greatest risk of this proposal is that the government will collude with public sector employers to misuse the public emergency provisions of the Labour Relations Code in order to prevent effective strikes. For example, an employer might make no preparations and the government would then be "forced" to use public emergency (or other) provisions to stall job action. The only check against this sort of collusion is the potential for wildcat strikes. While the state can use the legal system to sanction illegal strikes, if workers and unions are willing to bear the sanctions that result, then the harm caused by the strike continues.

It is very unlikely that the UCP will make such a fundamental change to the essential services regime. This reflects that, like the NDP government that preceded it, the UCP government will benefit from the barrier to effective and legal public sector strikes created by the existing ESA provisions. Instead, the UCP is likely to simply remove the replacement worker ban when an ESA is in place, which will further tip the playing field in favour of the employer (i.e., the government) by delaying job action and undermining workers' strike power.

-- Bob Barnetson

AUFA pickets Board Chair's place of business

This afternoon, 20 members and 4 allies of the Athabasca University Faculty Association (AUFA) picketed the place of business of Athabasca University (AU) Board of Governors (BoG) chair Vivian Manasc. This was AUFA’s third information picket. We had 12 first-time picketers, including one who said "Is it a little weird that this is the only time I get to meet my colleagues?"

The purpose this picket was to show AUFA members’ growing displeasure with AU’s foot dragging at the bargaining table and demonstrate that, should a work stoppage occur, it will be most unpleasant for individual BoG members. Passersby were handed leaflets outlining AUFA’s concerns.

The most interesting part of the picket was an interaction with a worker from Manasc Issac who, while walking through our picket line, volunteered that we should go picket the workplace of AU President Neil Fassina because he is the one who is calling the shots in bargaining. This is the first independent verification we’ve of our suspicion that Fassina is the architect of AU’s bargaining strategy. 

This picketed coincided with AUFA’s 20th (!) day of bargaining. AUFA’s most recent settlement proposal:

• a two-year wage freeze,
• a clear process by which long-serving term employees become permanent, and 
• two further years of waged to be negotiated (and resolved by arbitration). 

This proposal is broadly consistent with other provincial settlements as well as the settlement recently reached between AU and its support staff.

Bargaining was halted after two hours this morning because the employer, who requested the additional session, had no meaningful proposal to make when AUFA got there.

The BoG bargaining team has stalled bargaining since last May. It delayed the exchange of proposals, it advanced unreasonable proposals (that it has since abandoned), and it has been unavailable to bargain for long periods of time. It has also stalled the negotiation of an essential services agreement (which is a pre-cursor to formal mediation) and has now stalled informal mediation until mid-June.

The next dates for bargaining appear to be June 17 and 18 with a mediator. AUFA will be hosting more picketing events between now and then.

AUFA appreciates representatives from CUPE 3911, the Edmonton and District Labour Council, and the Confederation of Alberta Faculty Associations who joined our picket line this afternoon.

-- Bob Barnetson