Athabasca University stalls bargaining right out of the gate

Bargaining between the Athabasca University Faculty Association (AUFA) and Athabasca University (AU) kicked off June 28th with an exchange of proposals. You can read the details here but the short version is: 

1. AU refused to table its monetary proposal, and 
2. AU has refused to set further bargaining dates unless AUFA agrees to meet in person (instead of bargaining via video conference). 

Since I'm no longer president of the union, I don't have to be polite about this approach to bargaining, which is stupid for many reasons, including:

• Practical: A union can’t get an agreement (which is the goal of bargaining) when the employer refuses to say what it wants and refuses to meet. Being unreasonable serves no one’s interests, including the employer’s.
• Strategic: While AU might have gotten away with stalling on a full proposal for a while, refusing to bargain until AUFA agrees to bargain exactly how the employer wants to bargain is contrary to the Labour Relations Code. There are good reasons to bargain online (e.g., significant travel costs, child-care issues, health issues) and AU has provided no coherent or compelling reason to refuse to bargain by unless it is face-to-face. The employer will eventually have to abandon this demand and, when it does, it will look (even more) incompetent and unreasonable than it does now.
• Political: AU ran this same play last round and it resulted in a near strike. A repeat of this approach has dramatically raised tensions among the members for no real gain. Most AUFA members are now angry and frustrated and AU’s bargaining team just spent all of the new president’s political capital for no real gain (“meet the new boss, same as the old boss”). In less than 20 minutes, AU also drove AUFA’s bargaining team (who are mostly new) from “let’s bargain in good faith and try to get a deal” to “fuck these clowns.” For a union, there is simply no better organizing force in the world than a terrible employer.

It is hard to fathom why AU insists on meeting in person. My best guess is this is some kind of dick-measuring contest, where the employer wants to show the union that it sets the terms of bargaining.

Alternately, it could be that the employer is stalling because it is not prepared to bargain. The union hasn’t shared AU’s non-monetary proposal yet (I imagine that is coming in the next few weeks) but it is basically a rehash of stuff from the 2020-2022 round of bargaining, which provides some support for the “not ready” hypothesis.

If there is a strategy behind refusing to provide a monetary offer, I’m hard pressed to see it. The government has issued a mandate across the public sector for a four-year deal with a cost-of-living adjustment of 2%, 2%, 1.75%, and 1.75%. AU will either open with that or with something even worse (like the U of Lethbridge has). Either way, withholding the monetary just makes AU look like uncooperative dicks and AU gains nothing from the eventual reveal.

Maybe the strategy is to try and lure AUFA into settling the non-monetary stuff first (thereby giving up the opportunity to trade language for a monetary offer the employer could live with)? Since AUFA isn’t stupid, it is obviously not going to fall into that trap so delaying providing a monetary proposal is just wasting everyone’s time.

Overall, alienating the union and its members (to no real gain) is a bad way for Athabasca University to start to bargaining and raises real questions about the competence of whomever is directing AU's bargaining approach. At this point, the employer’s best pathway to a deal that doesn’t involve a work stoppage is to set dates and provide a full offer, maybe with a mea culpa to smooth things over.

Since AU is showing zero labour-relations game, I imagine we’re off to the Labour Board. In the meantime, the union will begin the process of dissecting the employer’s proposal and building resistance to it among the members as part of its strike preparations.

I’d hoped that AU changing its spokesperson signalled a desire for better labour relations. Apparently not. If I had to guess how this will play out, I'd say there will be no real progress at the table, AUFA will declare impasse in the fall, and we go to mediation where the employer will be forced to actually start bargaining. 

This is super disrespectful of the employer and heightens the risk of an  unnecessary "fuck you" strike. Glad I kept my picket sign from last time. If anyone wants in on the pool about which employer-side rep gets throw under the bus first by AU when this goes off the rails, shoot me an email.

-- Bob Barnetson

Research: Government interference in collective bargaining

Earlier this week, the Parkland Institute released a report that I contributed to, entitled Thumb on the scale: Alberta government interference in public-sector bargaining.

This report examines how, in a time when workers’ Charter-protected associational rights appear to be expanding, the rate at which governments interfere with collective bargaining has skyrocketed.

It specifically looks at Alberta’s ongoing use of secret bargaining mandates, which turn public-sector bargaining into a hollow and fettered process.

This report is relevant because both UNA and AUPE have exchanged opening proposals with the government in the last few weeks and will be bargaining against secret mandates. The government opener in both cases was, unsurprisingly, identical and there is a huge gap between what workers are asking for and what the government is offering.

-- Bob Barnetson

John Oliver on Union Busting

A friend sent me this clip of John Oliver exploring union busting in the United States.

Very applicable to Canada as well.

-- Bob Barnetson

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

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

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

Concordia University of Edmonton strike triggers hard-line response

A meme from the 2022 CUE strike.

Strikes and lockouts can have profound effects on workers, managers, organizations, and their relationships. The research suggests a strike or lockout can result in:

• decreased worker job satisfaction, organizational commitment, and psychological well-being,
• strained relations with other organizational members (e.g., students),
• increased class awareness and solidarity among workers, and
• deteriorating relationships between workers and managers as well as between managers and owners

An interesting Canadian analysis can be found this 2008 article by Chaulk and Brown.

Concordia Faculty Strike

The fallout from Alberta’s first post-secondary strike at Concordia University of Edmonton (CUE) in January of 2022 appears to offer an example of a strike resulting in a heightened level of organizational conflict. The CUE strike centered on wage and workload demands, with the small faculty association (about 80 members) being among the worst paid (68th out of 70) in Canada.

In the year prior to the strike, CUE recorded an operating surplus of 33% and had significant savings. Instead of offering faculty a reasonable wage increase or addressing workload issues, the Board decided to off a 3% increase over five years and buy the nearby century-old Magrath Mansion. The mansion was putatively intended to serve as a campus but was neither zoned nor architecturally suitable for instructional space, so draw your own conclusions there.

CUE also pushed new disciplinary language that would allow it to fire faculty without just cause. CUE then offered to withdraw its disciplinary proposals if faculty handed over their intellectual property rights to the employer. This led to an 11-day strike in January of 2022 that, apparently, was some kind of surprise to CUE’s Board.

In the end, the employer dropped its discipline demands. The faculty association’s wage demands (which amounted to $350,000 or, if you prefer, 0.18 mansions) were mostly met and the strike wrapped up. CUE’s reputation in the community and with students took quite a hit. Subsequently, CUE’s sessional instructors filed to unionize with CUPE, in part because the employer refused to pay them during the strike, even though there were not in the faculty association and were not on strike (they were eventually paid).

Concordia Strike Fall Out

In the 14 months since the strike settled, the CUE faculty association has documented a number of concerning trends, including:

• Enrollment is down (I’m hearing 10%) and there are "budget shortfalls". Past accrued surpluses have apparently been transferred to a capital fund to build more buildings and buy more land. CUE is providing no real information about its finances to the community.
• Twelve staff were laid off this year.
• Four programs do not meet quality council faculty complement criteria and five more were identified by external reviewers as being understaffed but there is no indication of any institutional response. This is very bad news for a university.
• Approximately 10% of the CUE membership has been subjected to disciplinary investigations since the strike (the provincial average is about 2% per year) by expensive external investigators using inconsistent processes. Almost all of the discipline is being grieved, but CUE has not really engaged in resolution efforts, so off the grievances go to arbitration.
• Elected faculty representatives have resigned from the Board after being disciplined for raising concerns about deteriorating staff relations and faculty representatives are now to be chosen by the Board.
• General Faculties Council meetings have become hollow exercises in rubber stamping. Some faculty councils have also become inactive and/or are routinely end-run by deans, and other administrators are acting outside of policy.

The result is an organizational climate characterized, according to faculty, by fear and uncertainty. The Board of Governors has refused to meet with faculty to discussion these issues.

This outcome is not particularly surprising. Sometimes, the experience of weathering a strike can cause an employer to seek to improve its relationship with staff. Other times, the employer can double down on the behaviours that triggered the strike and even engage in retaliation (which is what faculty are saying is going on).

Doubling down can sometimes reflect a desire to punish workers and break their will to resist. Employers, especially those with religious origins, often resist any challenge to the organization's authority. This approach may also reflect a cost-benefit analysis by the employer (i.e., treating workers poorly is worthwhile in some way). Or it may just reflect the absence of any idea by administrators about how to move forward productively.

Maybe CUE will decide to change course. More likely, though, the conflict will continue until there is a change in the institution’s leadership.

-- 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: More Brooklyn 99

It looks like Brooklyn 99 will be using the Policeman’s Benevolent Association as a recurring antagonist in its final season. In Episode 3 (The Blue Flu), the uniformed officers fake an attack on an officer (mouse in a burrito) in order to pressure the NYPD to support the officers and buy them new tactical equipment. (These are likely reasonable demands from the perspective of the workers, but they are not explored and simply dismissed as self-interested.) When the NYPD won’t play along, the officers call in sick (i.e., strike illegally) and the main characters have to investigate and foil this job action.

Again, recognizing that writing a police comedy is tricky these days, there was a lot of interesting stuff packed into this show. First up, we don’t often see workers engaging in direct action on television. While the direct action is eventually contained by the employer, that the workers forced the employer to respond highlights how effective direct action can be. I’m not sure that was the intent of the writers, but it was an interesting facet of the show.

The sick out is basically treated as illegitimate. But one of the workers' demands was for new tactical gear (i.e., personal protective equipment), which you’d think the main characters might have some sympathy for. This suggests that there may be more to this work stoppage than worker laziness and manipulation (which is how it is presented).

The speed at which the main characters (who are generally written as moral, upstanding, and sometimes politically aware) jump to bust the patrol officers’ job action is quite striking. This again highlights how police officers sit in a conflicted position as workers. The main characters are workers but their job is to act against other workers on behalf of the powerful. That none of them (particularly Rosa, who left her job as a cop because of racist policing practices) were in any way discomforted by this was a missed opportunity.

To fill out the ranks while the patrol officers are out sick, detectives are dragooned from other precincts. The other precinct captains use this demand as an opportunity to take out the trash, dumping their least productive detectives on the 99th Precinct (my wife and I laughed aloud, having witnessed this exact play in government). This requires Amy to figure out how to covert these detectives’ capacity to work into actual work. She does this by offering an incentive program linked to pedometer metrics. The workers immediately subvert this effort, which is played for laughs and further amplifies the lazy worker trope.

The sick out is eventually brought to an end when the Captain tells the union rep that the strike has revealed that fewer patrol officers actually resulted in better policing. The threat here is that, if the patrol officers stay off, they won’t have jobs to return to when they come back. This is a classic management power move (threatening jobs to gain worker compliance). It has echoes of employers threatening to dump a product line, close a business, or automate a process if the workers don’t do management’s bidding.

While the police union has only appeared in two episodes, it seems that Brooklyn 99 is drawing upon the corrupt union (or union boss) trope to create a recurring antagonist for its final season. This makes sense given that the show is trying to highlight racist and violent policing, to which police unions have contributed, while also trying to be a comedy. To the degree that viewers don’t distinguish between this particular example and the behaviour of the broader labour movement, Brooklyn 99 is likely doing workers a disservice.

-- Bob Barnetson

Does SFL limit the state's ability to order workers back to work?

The fall 2020 issue of Labour/Le Travail had an interesting essay entitled “Free to strike? What freedom to strike? Back-to-work legislation and the freedom to strike in historical and legal perspective.” This essay by Eric Tucker was one of four in the volume that examines back-to-work legislation.

I’ve never regretted the time I’ve spent reading a piece by Tucker and this was no exception. The essay starts out examining the three strands of the framework that regulate workers’ freedom to strike. These strands include:

• The liberal order’s foundational commitment to individualism which does not recognize the validity of collective activity (unless the wealthy do it in the form of a corporation). Collective actions, such as strikes, were (usually) suppressed by the state, although this repression was inconsistent and, eventually, a right to strike was recognized.
• The post-war Wagner Act Model (WAM) narrowed the opportunity for workers to engage in legal strikes a spart of a broader strategy of minimally accommodating workers’ demands while containing the power of putting down one’s tools. 
• Essential services restrictions were a late addition as the state extended WAM to public services, with strikes either being limited or replaced with binding arbitration. 

Beginning the mid-1970s, governments began actively intervening in labour disputes through back-to-work (BTW) legislation. The majority of Tucker’s piece examines how the constitutionalizing of the right to strike in the Saskatchewan Federation of Labour case in 2015 may affect the state’s ability to legislate workers back to work.

The upshot of Tucker’s analysis (which is really worth a read) is that BTW legislation is probably a Charter violation but may be saved under Section 1 so long as the BTW legislation minimally impairs the affected right. This, argues Tucker, will likely require an alternative dispute resolution process. In effect, carefully written BTW legislation, absent the punitive measures found in Harper-era laws, will likely be found constitutional.

This analysis suggests that a constitutional right to strike has limited practical utility because it is enmeshed in a legal regime that profoundly constrains the right to strike and gives government the ability to end strikes so long as they provide a reasonable alternative way to settle the dispute. A question this raises is how long will workers continue to participate in such a system?

-- Bob Barnetson

Early Chinese worker militancy in BC

The autumn issue of Our Times magazine contained a very interesting examination of early Chinese worker militancy in BC, written by Winnie Ng. The article traces the history of these workers from 1881 to 1947.

Ng documents several instances of militancy among these workers, including a strike to protest and resist head tax collection in Victoria in 1878, efforts to reduce working hours and improve wages in laundries in 1906 and kitchens in 1907 and the formation of various Chinese unions.

Of particular interest is Ng’s discussion of co-operation between Chinese and White shingle-worker unions. Employers used Chinese workers to suppress wages and the more privileged white workers recognized in 1917 that they needed the support of Chinese workers to make progress. Ng’s translation of Chinese-language newspaper coverage demonstrates the savvy of the Chinese workers. Several strikes ensued to resist wage rollbacks and increase compensation.

Ng also chronicles Chinese workers mobilizing against racist relief programs during the Great Depression. This history challenges conventional historical views about Chinese workers as docile and strikebreakers. Overall, this is a very good read, particularly for students in LBST 325.

-- Bob Barnetson

Labour & Pop Culture: Always Brave, Sometimes Kind

I received a recent (2020) novel for Christmas entitled Always Brave, Sometimes Kind that was written by Katie Bickell. The novel is essentially a collection of loosely related short stories that follows a group of people who live in and around Edmonton between 1990 and 2016. All of the characters have what might be described as rough lives, often made worse by the political economy of Alberta.

There are four stories with a clear labour-related element to them. The first story is set against the backdrop of the laundry workers' strike of 1995 and the Klein cuts to the health care and income support systems. Health-care workers struggle to deliver care, the social services system is falling apart (which particularly affects Indigenous characters), and a social worker is laid off.  Overall, an emotionally difficult story to read if you lived through the era.

Later, we meet a social studies teacher who is grappling with the effects of Klein's budget cuts and unfulfilled promises (circa 2002). There is mention of the teacher's strike and frustrations that it left classroom teachers with. I won't spoil the story for you, but he eventually exits the professional and makes ends meet rather creatively. This very much reminds me of my buddy Rob who was an elementary teacher. After getting three layoff notices in successive years and less and less support to deal with increasing classroom challenges, he eventually quit in frustration. The author really captures public-sector despair of the late Klein years.

One of the characters is a camp worker in Fort McMurray who does the long commute back to Sherwood Park (I think). In a pair of related stories, we see the stress that this approach to staffing extraction industries places on marriages and families.

Finally, there is a story set in a hospital where one of the characters encounters one of the many temporary foreign workers recruited to Alberta to work in the service industry during the 2006-2012 period. While the character is not particularly sympathetic to these workers, the author writes the scene in a way that quietly highlights the challenges faced by these workers.

Overall, this was a challenging book to read because of how difficult the lives of the characters were to read about. The author really captures how lower- and middle-class Albertans have struggled, even during boom times, to keep their lives and families together. It wasn't until the last quarter of the book, as the stories start to knit together and multi-generational problems begin to resolve, that started enjoying the book and began to appreciate the gritty earlier stories.  Overall, an interesting window into the recent past.

-- Bob Barnetson

Labour & Pop Culture: The Factory Witches of Lowell

Recently, a new novella arrived on my desk. It tells the story of a strike by young female mill workers (“mill girls”) set in Lowell, Massachusetts during the mid 1830s (probably, as a work of historical fiction, the story is vague). Facing severe health effects from the work and a reduction in wages, the workers strike.

As the title implies, workers in The Factory Witches of Lowell are, well, witches. I’m not much for the fantasy genre, but I am interested in representations of union in science fiction. There are slim pickings in the sci-fi genre so I’m like, fine, bring on the dragons and unicorns and whatnot.

Without giving away the plot, the workers use witchcraft to create an unbreakable solidarity among the workers as well as control the production process. This gives them the leverage to hold out against the pressure of bosses.

Overall, the book left me a little flat. Using magic as a proxy for solidarity and direct action was an interesting idea that, to my mind, never really went anywhere. Perhaps, though, I’m just less interested by allegory than I am by more realistic representations of workers exercising power?

I have, however, ordered The Future of Another Timeline, which explores a covert war between rival factions of time travellers over women’s and human rights. The events they attempt to influence include moments in the labour movement.

-- 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

Labour & Pop Culture: The English Game

Earlier this spring, I watched a mini-series on Netflix called The English Game. The story is set mainly in northern England in 1879 and (loosely) follows the first British working-class soccer team to win the FA Cup. Previously, the game was mostly the preserve of upper-class amateurs. Factory Owner James Walsh breaks the rules by hiring two Scottish ringers to play for his Darwen team and mayhem ensues.

The storyline is interesting because it foregrounds class differences, conflict and blindness. The organization that controls the FA Cup is very upper crust and is largely (and perhaps intentionally) blind to the advantages that the rules grant to those who are wealthy (mostly leisure time).

The factory owners (many of whom also run soccer teams on the side) are a mixed bag and continually grind the wages of the factory workers. This leads to a strike and violence (which is quickly repressed by the police and judiciary). The social services available for “fallen” women was also starkly depicted.

Soccer is presented as one of the few positive things in the lives of factory workers. The notion of soccer as bridging the class divide (without in any way upsetting it) was a bit heavy handed and galling. This gets papered over a bit with a story of the moral redemption of (eventual soccer big wheel) Arthur Kinnaird.

While period dramas are not my thing, this was an interesting (and short!) foray into the lives of upper- and lower-class people during the industrial revolution.

-- Bob Barnetson

PSE Bargaining in Alberta: Some initial thoughts

The vast majority of collective agreements in Alberta’s post-secondary system will be up for renewal by July 1. The bargaining context is not great and includes:

• two cuts to government grants in six months, which have triggering massive layoffs in at some institutions,
• a recently announced expenditure reduction mandate (possibly in the range of 20%), which will likely result in further layoffs (although it may be on hold until May),
• a tanking economy, 
• a government intent on rolling back public-sector wages, and
• legislation (Bill 21) last fall that allows the government to impose binding and secret bargaining mandates on PSE Boards of Governors.

While employer bargaining mandates are secret, the early pattern that is emerging is for one-year deals with a wage rollback.

Although every bargaining relationship is a bit different, PSE employers basically have two levers to get what they want in bargaining:

1. Layoffs threat: An employer could use the spectre of layoffs to pressurize a union to accept wage and language rollbacks (e.g., “agree to a 10% wage cut within 14 days or we’ll sack 10% of your members”). This “pick-your-poison” strategy is designed to trigger internal dissent within the union. 
2. 24-Hour Lockout: Employers may push bargaining to impasse in order to impose a short lockout, followed by a return to work under the employer’s last offer. This would allow employers to impose rollbacks, unless the union can mount a strike. 

While these levers look powerful, they aren't overwhelmingly so.

Layoffs threats at the bargaining table are very provocative. An employer that makes such threats runs the risk of radicalizing the members of the union (essentially creating a viable strike threat where none existed). The leverage generated by a layoff threat can also be reduced by the union inoculating its members (“The employer is going to do X, our response is Y.”).

Further, layoff threats (while real) are not easy for institutions to implement. In my faculty association, it costs the employer approximately 18 months of salary to lay off association members. So, a layoff imposes an immediate financial penalty on the employer.

Further, the work done by a laid-off staff member (which contributes to revenue generation) must be either forgone or done by someone else. My experience with past rounds of layoffs is that the survivors are often unwilling and unable to pick up the extra work caused by layoffs, In fact, the survivors often stop working as hard as they previously were because of the sense of betrayal caused by the layoffs.

Now, the government and senior PSE administrators probably couldn’t care less about the fate of individual workers or organizational morale. But they don't have any interest in seeing institutions obviously failing because of layoffs they imposed. So, while layoff threats are real and can be powerful, they are not as powerful as everyone imagines.

Similarly, the threat of a 24-hour lockout is easily overblown. A credible strike threat by a union means a 24-hour lockout is not an effective employer strategy: the union can just strike to avoid going back under the employer’s terms. Further, triggering a work stoppage (thus compromising students’ access to education) will look bad on the employer if the union chooses to weaponize such behaviour in the realm of public opinion.

Developing the processes and membership buy-in necessary to have a credible strike threat will be a challenge from some faculty associations. Sophisticated administrators (and unsophisticated faculty association leaders) have worked hard to frame PSE labour relations as a technical exercise, rather than as a political struggle, over the years.

An aggressive government egging on PSE employers is an opportunity for these faculty association to engage in some rapid re-framing of labour relations. And the bargaining delays caused by COVID-19 give these associations the time to lay the political and practical ground work necessary for them to have a credible strike threat.

A credible strike threat also ups the cost to government of imposing cuts on post-secondary institutions. This can, in turn, blunt or redirect government policy. For example, if the public-sector is rocked by strikes and service disruptions and government approval is plummeting because its budgeting assumptions were obviously ludicrous and are not generating the jobs that were promised, a low-tax strategy may suddenly look less attractive than, say, developing an adequate tax-base to afford the public services voters desire.

-- Bob Barnetson
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