On January 15th, AU President Neil Fassina forwarded a message to all AU staff of all bargaining units, detailing a complaint from AUFA related to AU’s early closure. President Fassina characterized the complaint as a malicious attempt by AUFA to ruin Christmas. Below is AUFA President Jolene Armstrong’s response.
Dear AUFA members,
Thank you for your thoughtful discussion, critiques and expressions of support. It is all very useful, and I hope that I can clarify many of your concerns, and reassure people of the thought process that went into deciding to respond to the Dec 20 email in question.
I would like to say that I feel that AUFA’s actions have been misrepresented and mischaracterized by President Fassina, and that his intent with his email was to sow discord throughout AUFA membership. Furthermore, be assured that AUFA’s response to the Dec. 20 email was not a knee jerk reaction, but rather the result of a couple of weeks’ worth of discussion, consultation, research and consideration. I appreciate that sometimes the decisions the union must make may be unpopular, or even counter-intuitive on the surface, but I want to assure everyone that there were very clear reasons for doing so in this instance, having to do with the labour code and precedent.
I am also sorry that what should actually have been a labour management issue ended up being such a public event. That was never AUFA's intent.
Neither was the intent to be merely belligerent or pick fights over incidental things. I too, at first glance thought that responding to what seemed like a nice gesture on the surface would be petty until I had fully thought through, over the holidays, the legal ramifications of not responding. Furthermore, I was hoping that the university’s response to my communique would be to take up my invitation to discuss the matter and arrive at an agreement, thereby avoiding a formal complaint, so to the say the least, I’m a little shocked by their response which affords little to no opportunity to work out ah and cordial process for the future.
I do feel the need to clarify AUFA’s position that those not serving on AUFA executive, and those not actively involved in contract negotiations or labour relations may not have a full grasp of since so much of AUFA’s work falls outside of public view. So, I will do my best to explain why, because of various legal duties, AUFA needed to respond “for the record.” Please bear with my admittedly lengthy and technical explanation, as the decision to respond to this action is actually based on technicality.
The short of it is, the employer is obligated to follow employment law; when it doesn't the union is obligated to defend its members’ interests; if they followed the law and asked, we probably would have said yes, as we would have been duly consulted, and certainly we know our members would appreciate the extra time off with pay.
We are in bargaining, and for the first time we are bargaining under the Labour Code which expressly describes what is call a Statutory Freeze, a time period during which management can not make any changes to the conditions of employment while bargaining is taking place. If they make changes, they are in violation, whether that change benefits our members (a move that could be seen as an inducement during a bargaining period) or harms members; the code doesn’t differentiate between the two. The issue at stake is the setting of precedent.
For context, as you are all aware, bargaining has been protracted and tense, and AU’s team has been aggressive, if not outright hostile toward AUFA’s team. The employer is tabling an unreasonable offer, which it refuses to withdraw and which is an outlier to other public sector bargaining settlements. We have already agreed to zeros, yet they have not withdrawn the very egregious language that if we were to accept would most certainly harm our members in the future. No other public sector settlement has asked for and received both zeros for salary and rollbacks to contract language. At this point, we can not understand why they are pushing so hard to trigger labour action.
More context: AUFA is currently dealing with five active disciplines cases. While the nature of those cases is strictly confidential, AUFA can say that the volume of cases is extremely atypical. In the past discipline was extremely rare, limited to the odd case every couple of years. AUFA sees, in most of these cases, that the employer is being aggressive and heavy-handed towards our members. Most of these situations could likely have been solved informally with a conversation between the parties. AUFA is certain a solution could have been reached without the formality and stress of formal disciplinary action. Bear in mind that the employer has tabled language specifically related to the discipline process that would surely disadvantage members if we are forced to accept it.
Additional context: As you may remember, in the spring, AUFA filed an unfair labour practice complaint with the labour board as a result of the employer’s repeated and multiple violations of the collective agreement, policies and legislations. Since filing that complaint, we have not seen a reduction in these violations which include things ranging from blown timelines, failure to respond to communications, violations of various articles in the CBA, the Labour Code, Human Rights and the university’s own policies. As a result of the very difficult conditions of relations with the employer due to their non-compliance with the rules, we are left feeling that their intransigence in dealing with the union must be part of a larger union avoidance strategy that is well-known as union busting. Remember that AUFA exists, at least for the time being and foreseeable future, as a creature of legislation. The employer can not choose to deal with AUFA or not; they are also bound by legislation. We are continually puzzled as to why we are constantly in a position to respond to their intransigence.
While it may seem petty to have responded in this manner to the half day off, one of the things that AUFA feared, and with good reason, is that not responding would set us up for an estoppel argument in the future. Estoppel is difficult to explain but here is basically how it works. So, let’s say next time the university decides to unilaterally change our members’ conditions of employment, except that instead of it being a welcome change, it is unwelcome (members are being told to work extra hours for no pay, for instance), and AUFA objects or files a complaint, they would ( and believe me when I say that estoppel is one of their favorite arguments in grievance situations), point out that they have changed the conditions of our employment in the past (half day off on Christmas Eve) and we did not object or respond to that move; therefore, there is precedent now and they are empowered to go ahead and make changes, beneficial or harmful. The short of it is, because of estoppel we had to respond or potentially face the consequences in the future. Even without the estoppel argument, which would be saved for a hearing, allowing them to do this the one time without consultation gives them an out later on in subsequent freeze periods as per the Labour Code, which doesn’t expressly mention, but implies estoppel as being a way around the freeze.
Management had ample opportunity to alert AUFA as to their intentions. For instance, on Dec 12, AUFA meet with President Fassina, VP/Provost Prineas, Charlene Polege, and Abey Arnaut at a Labour Management Meeting, as required in the CBA. While AUFA brought a number of items to the agenda for discussion, Management brought not a single item. I asked them at the beginning of the meeting about the lack of items and said they had nothing to discuss, which frankly I found odd (how can you not have anything to talk about?) and yet another strategy to delegitimize the union’s role at the university as the representative for over 400 people. This meeting strikes me as having been a good opportunity to have raised the decision to grant people a half day off on Dec. 24.
In the original letter of objection, which was intended to put it on record that we object to the unilateral change in working conditions, point out the violations and therefore inoculate against an estoppel situation in the future, I invited a discussion about the issue. In a counter response to Ms. Polege’s letter to AUFA, which was not shared in president Fassina’s communique, I again invited them to meet and discuss the issue, so that we could iron out a process. And in both instances my invitation was ignored. So while the employer claims to want to be collaborative, AUFA’s experience is that time and again, they do not actually want to discuss issues in a collaborative and problem solving manner, despite numerous invitations to discuss issues with AUFA. Without the opportunity to discuss and solve issues, AUFA is faced with two unattractive alternatives: file a formal complaint, or leave the issue unresolved, setting us up for problems in the future.
I understand that members may be uncomfortable with the communication exchange, and certainly, it was a difficult decision that ultimately came back to the issue of estoppel and ensuring that AUFA could protect members’ interests in the future. I felt that not responding would have left AUFA members legally vulnerable, and that did not sit well with me and other AUFA officers.
I believe that someone asked about or alluded to having been given time off in the past. AUFA did investigate this as far back as we were able to access and found the following posted closures:
2012, 4:30 pm, Monday, December 24
2013, 4:30 pm, Tuesday, December 24
2014, 4:30 pm, Wednesday, December 24
2015, 3:00 pm, Thursday, December 24 (although also listed as 4:30 pm)
2016, 4:30 pm, Friday, December 23
2017, 4:30 pm, Friday, December 22
2018, 4:30 pm, Monday, December 24 (changed to noon after the December 20 email)
2019, 4:30 pm, Tuesday, December 24
Let me be clear that individual managers granting time off to a particular unit, or to groups of individuals is an entirely different matter that would not fall under that same category of concern that the Dec 20 email falls under for statutory reasons. So it may very well be the case that some of you were granted extra time off in the past. That is not of issue here.
I appreciate the time you have taken to read this email and consider AUFA’s rationale, and I hope that this serves to allay certain fears that AUFA is somehow behaving in a petty manner, picking unnecessary fights or that we would have denied AUFA members the opportunity to have a half day off on Dec. 24. We most certainly would not have, nor did we, as our objection to the email came well after the fact, after careful consideration of the legal ramifications. It was an objection to the process.
At this time, I urge AUFA members to continue trust that AUFA executive and bargaining team are acting in good faith for members, in what we believe are the best interests and means of protecting our members. Let us be clear, as many of you have pointed out, President Fassina’s email was intended to divide the union, sow mistrust toward the current AUFA executive, at precisely the time that we need solidarity, as bargaining intensifies. Let's not let that happen.
I’m happy to answers any further questions, or provide clarification.