Discipline and Dry-snitching at AU

discipline copy.jpeg

Article 7 of the collective agreement sets out the process by which Athabasca University can discipline AUFA members. The discipline process starts with a disciplinary investigation. Most investigations do not result in discipline.

If grounds for discipline are found, the employer can then impose sanctions (ranging from a reprimand to termination). AUFA members can appeal any discipline.

Since President Fassina’s arrival in late 2017, there has been a sharp increase in the number of discipline investigations. Over the past 3 years, AUFA has seen three times as many discipline investigations as in the preceding 10 years. Interestingly, the number of cases where sanctions have been imposed remains the same (i.e., the rate of sanctioning has declined).

Table for Post.PNG

Discipline Cases by Year

Note: 2017-2019 data based on records review. 2007-2016 data based on records review supplemented by interviews with grievance officers.

The origins of most disciplinary complaints typically become apparent during the disciplinary investigation. Most recent discipline cases stem from complaints by a supervisor or a co-worker about performance or workplace behaviour.

Three of the recent investigations, however, have unclear origins. That is to say, while the issues under investigation in each case are clear (e.g., alleged bigamy of employment or misrepresentation), what (and who) triggered the investigation is not.

A close examination of these mystery cases suggests the root cause was idle (and often incorrect) gossip among AUFA members. While there does not appear to have been any intention to trigger a disciplinary investigation, the gossip eventually reached the ears of supervisors and/or HR and away we go.

This dynamic is often referred to as “dry snitching” in the labour movement. Essentially, workers sharing information about one another inadvertently trigger the disciplinary process. That 17% of recent discipline cases are the result of dry snitching suggests three things:

  1. While office gossip is inevitable, it is important to be mindful of who hears gossip, especially when that gossip could potentially result in discipline. The flat and informal organizational structure of AU means that co-workers with whom we socialize can also have managerial responsibilities. Sharing gossip with these co-workers can jeopardize the jobs of other AUFA members. More bluntly, not everyone with whom we’re friendly is necessarily someone who is safe to confide in.

  2.  AU is increasingly investigating potential disciplinary issues. We have gone from 1 case every 2 years to 13 cases in 2019 so far. It is unclear why the number of investigations has increased.

    A charitable explanation is that AU is trying to protect AUFA members’ procedural rights by following the collective agreement. That explanation is hard to reconcile with AU’s violation of other provisions of the collective agreement.

    An alternate explanation is that AU is trying to intimidate AUFA members in order to dampen overt discontent, and perhaps as part of a broader union-rejection strategy. The stress caused by being under investigation represents a significant penalty to a member even if no discipline is enacted.

  3. AU’s increasing interest in disciplinary investigations suggests that the protections set out in Article 7 of the collective agreement (including union representation and the delay of severe penalties until an appeal is heard) are provisions worth fighting to retain.

During the 2018/19 round of bargaining, AU (unsuccessfully) sought to make it easier and cheaper to discipline AUFA members. It may be necessary to push back against similar proposals in the 2020 round of bargaining.

Bob Barnetson

Chair, Work Stoppage Committee

A Deal's a Deal.... Except at AU

welching.jpeg

Note: The AUFA member mentioned in this blog post has consented to its publication.

Last week, the Alberta Union of Provincial Employees (AUPE) convinced a judge to grant an injunction against Bill 9 (the Public Sector Wage Arbitration Deferral Act). Bill 9 allowed the government to violate collective agreements affecting 190,000 public-sector workers.

 In his reasons for granting the injunction, Queen’s Bench Justice Eric Macklin noted:

A member of the public expects, and is entitled to expect, that an agreement reached with the government will be honoured.

Essentially, the judge asserted that a deal is a deal. A recent development in a long-standing AUFA grievance file suggests Athabasca University doesn’t agree.

Seven years ago, AUFA began representing a member who alleged harassment. Five years ago, AUFA and AU reached a contractually binding grievance settlement. In exchange for AUFA withdrawing two grievances, a privacy complaint, and a judicial review application, AU agreed (in part) to:

  1. permanently re-assign the member to a different organizational unit, and

  2. assign the member a specific supervisor.

The agreement provided that that supervisor could change but that AU, AUFA, and the member must agree on the new supervisor. A change in supervisor occurred in mid-2017 via this process.

On July 21, 2019, AU labour relations advisor Abey Arnaout sent the member notice indicating the member would be returned to the organizational unit where the alleged harassment occurred (and the alleged harassers still reside) and the member would be assigned a new supervisor. A subsequent email indicated this change was effective retroactive to July 6.

Because no negotiation of the supervisory change took place and there were no provisions for ever changing the member’s organizational unit, AUFA immediately requested AU comply with the five-year-old grievance settlement and reverse the July 21 changes. AUFA indicated it would enforce this agreement if AU did not return to compliance immediately.

AU’s reply came from labour relations specialist Anik Fehr. Fehr declined to comply with the settlement agreement. Instead, she wrote (in part):

To this end, we would like to invite both AUFA and [member] to a meeting in an attempt to reach an agreement to an alternate supervisor for [member]. Should this meeting not provide resolution, or should having a meeting not be of interest to either AUFA or [member], the University, as previously proposed on numerous occasions, would again suggest resolution through the auspices of a mediation. The University is very much in favour of resolving this issue through these non-adversarial, collaborative processes.

Bob, finalizing [member’s] supervisory relationship must be completed, and the University would like to work collaboratively with AUFA and [member] to resolve this matter. I hope you will give due consideration to our proposal rather than the adversarial process you have threatened to undertake. Furthermore, the University respectfully requests a formal response to our proposal to be received no later than August 2, 2019.  Should we not receive a formal response by this date, the University will finalize the transition to [member’s] reporting line. 

AU’s position is problematic in six ways:

  1. AU is in violation of the 2014 settlement agreement that it signed.

  2. If the member fails to comply with AU’s illegal directive, the member is at risk of discipline.

  3. AU wishes to negotiate a change to the supervisor (a permissible action) but seeks to change the terms of the 2014 agreement by demanding mediation if no agreement is reached.

  4. AU asserts that, absent a change in supervisor (and there is no compelling reason for this change), it will simply continue violating the agreement. So, essentially, AU is trying to force AUFA and the member to negotiate with a metaphorical gun to their heads.

  5. AU ignores that it has put the member back into the organizational unit that still houses the member’s alleged harassers. There are no provisions for such a change in the settlement agreement.

  6. AU claims to want to resolve the matter “through these non-adversarial, collaborative processes”, but AU’s own behaviour in the matter is clearly illegal, aggressive, and unethical.

This behaviour by AU (and specifically HR) tells us several things:

  1. AU doesn’t keep its word. The 2014 grievance settlement is very clear. AU has decided to simply ignore its legal obligations.

  2. AU is hypocritical. AU’s putative desire for a non-adversarial, collaborative process sits at odds with its actual behaviour.

  3. AU doesn’t care about its employees. Telling a member late on a Sunday night that they must suddenly work in proximity with their alleged harassers and, subsequently, using this change as leverage to force a change in supervisor are deeply unethical behaviours.

As Justice Macklin wrote about Bill 9, “it is generally in the public interest that parties to otherwise valid agreements, freely negotiated, honor their obligations under those agreements.” AU’s decision to welch on the 2014 settlement that it signed means AU workers must now question whether they can trust any statement made or agreement entered into by AU.

This behaviour by HR is neither respectful nor an act of integrity, which you’ll recall are two of the five I-CARE values promulgated in the Imagine plan. HR’s deceit will doubtless reinforce the growing skepticism in AU’s senior executive that is evident in the recent engagement survey.

AUFA has filed a grievance and is exploring other enforcement options to ensure the member’s rights are protected.

Bob Barnetson, Member

AUFA Grievance Committee

AUPE wage re-opener foreshadows next round of AUFA bargaining

bill+9+protest.jpg

AUFA and AU will commence bargaining again in the late spring of 2020. AUPE Local 69 (representing AU’s support staff) is presently negotiating with AU and its experience may usefully foreshadow what AUFA can expect.

Local 69 is presently in the last year of a three-year deal. According to an update sent to AUPE staff last week, AUPE and AU were supposed to enter negotiations for a wage re-opener, starting in early May. If no agreement was reached by June 30, the parties would then have gone to arbitration to settle the cost-of-living adjustment.

AU declined to meet with AUPE until June 25. At the June 25 meeting, AU offered a zero percent cost of living adjustment. AU’s rationale was threefold:

  1. Zero percent was consistent with other settlements.

  2. Alberta’s economy remained depressed.

  3. AU is not yet out of the woods financially.

AU also emphasized that management and excluded employees have had their wages frozen for five years and that President Neil Fassina received a government-imposed pay cut. According to AU, no one should get a pay raise in order to avoid making management and excluded staff “second-class citizens”.

AU indicated that it would not be moving off of its mandate of a further wage freeze. AU then stated that “at this time, the offer is 0%, but who knows what may happen in the future – it could even be a rollback, no one knows what the situation will be next month or next year, but today it is 0%.”

As Bill 9 postponed all arbitrations until the fall, AUPE bargaining is now at a standstill. Local 69’s experience suggests four things for AUFA members:

1 . AU continues to ignore its procedural obligations. Much like it did with AUFA in 2018/19, AU stalled negotiations with Local 69. Procedural delays tend to benefit the employer because they push off any wage increase and, in the short term, delays make the union look ineffective to its members.

The effectiveness of this tactic diminishes over time as workers begin to understand delay as an employer tactic. The bad faith that this tactic represents can, indeed, damage the employer’s credibility and increase worker support for their union.

2. AU seeks continued wage freezes. This expectation is not surprising. AU (with the encouragement of both the former ND and present UCP government) is seeking to externalize the cost of the public services onto public-sector workers through wage freezes.

This expectation is not realistic. Long-term wage freezes (in the face of ~2% annual inflation) are untenable because they drive down workers’ purchasing power and pension entitlements. They also reduce the employer’s ability to hire.

AU’s rationale for further wage freezes is weak. AU is doing well. Its financial statements show a $14.3 million surplus in 2018/19. AU also has an accumulated surplus of $31.6 million, roughly what the university had before the Board and senior administration steered AU onto the rocks in 2013.

Further, it is unreasonable to expect workers to subsidize the cost of public services through substandard wages. Particularly galling is the assertion that wage freezes affect senior executives (the highest paid workers at AU) in the same way that they affect AUPE staff (among the lowest paid workers at AU). The idea that the growing number of senior executives at AU are second-class citizens is patently absurd.

executive salaries.png

3. The spectre of rollbacks is leverage for the employer. Bill 9 is widely believed to be a precursor to legislated wage freezes or rollbacks in the autumn. (The notion that Bill 9 is intended to give the government time to get a grip on the province’s finances is hard to reconcile with the government giving corporations a $4.5 billion tax cut.) AU clearly tried to use the spectre of rollbacks to buffalo AUPE into agreeing to another wage freeze.

4. Making gains in 2020 will be difficult. Despite AU’s solid financial positions and limited vulnerability to government funding cuts (grants represent only about 35% of revenue), AU seems intent on grinding its workers’ wages. Making significant wage and/or language gains at the table in 2020 will require a credible AUFA strike threat.

 Bob Barnetson, Chair

AUFA Work Stoppage Committee

What Bill 9 Means for AUFA Members

Screen+Shot+2019-06-17+at+2.24.00+PM.jpg

Last week, the government introduced the Public Sector Wage Arbitration Deferral Act (Bill 9) in the legislature. If passed, Bill 9 will not directly affect AUFA or its members. Bill 9 will, however, affect the collective agreement presently in effect between AUPE Local 69 and Athabasca University as well as other faculty associations. Bill 9 will also indirectly affect AUFA members.

The crux of Bill 9 is this:

  • Many of Alberta’s public-sector unions negotiated multi-year collective agreements under the New Democrat government. These agreements typically saw two years of wage freezes.

  • Part of the quid pro quo for these wage freezes was language allowing for additional negotiations about wages (i.e., a wage-re-opener) in the final years(s) of these agreements.

  • If these negotiations did not result in agreements between the parties, the disputes could be referred to a neutral third party (an arbitrator) to determine what (if any) wage increase would take place. Most of these agreements have hard deadlines for the resolution any dispute.

  • Bill 9 postpones any hearings on wage re-openers until the end of October (or later, in some cases). Presently, Bill 9 affects 24 collective agreements covering 180,000 workers, including the AUPE members employed by Athabasca University.

  • Bill 9 does not directly affect AUFA members because (1) we have not concluded a collective agreement yet, (2) AU appears unwilling to conclude an agreement with a wage-re-opener in it, and (3) any wage-reopener we negotiate would fall outside of the timelines set out in Bill 9.

Bill 9 does indirectly affect AUFA members in three ways.

First, Bill 9 changes the terms of contracts after they have been negotiated by the government (either directly as the employer or indirectly through government-appointed agencies, boards, and commissions). Changing agreements after the fact is a significant act of bad faith, and suggests that unions cannot trust public-sector employers to do what they agree to do. While Bill 9 may be subject to a legal challenge, the speed of court proceedings will render any victory moot.

Second, the purpose of Bill 9 is to delay any wage increase until the government has had time to receive the advice of its panel on Alberta’s finances in August. This panel is widely expected to recommend that the government freeze or roll back public-sector wages. Preventing wage increases until after this point makes it somewhat easier for the government to force (perhaps through further legislation) such freezes or rollbacks on public-sector workers. Such legislation may affect AUFA members (it is not possible to know how at this point).

Third, the labour movement is outraged by this violation of collective agreements. While it isn’t clear if union leaders are prepared to stage illegal strikes (which would be the most effective response, but would entail significant financial penalties), many members and activists are openly discussing the possibility of doing so. This creates the possibility of significant social disruption.

Bob Barnetson, Chair

Work Stoppage Committee

AUFA Grieves Sick Leave Denial

Screen Shot 2019-05-28 at 7.51.58 AM.png

AUFA is currently pursuing a grievance on behalf of a member whose sick leave has been unreasonably denied.

AUFA does not normally discuss the content of individual grievances. With the permission of the member involved, AUFA is making an exception because of the implications of this grievance for all members.

Background

In the summer of 2018, a member’s partner was diagnosed with a second instance of cancer. As a result of this diagnosis, the member developed a serious, stress-related illness. The member’s doctor put the member on sick leave during the autumn of 2018.

In late 2018, the member began to recover from the illness and sought a graduated return-to-work (RTW). When the RTW was requested, AU’s Employee Health Coordinator Darren Schmidtke requested:

...a medical note from [the member’s] doctor indicating any limitations/restrictions or [the member’s] return to work, what [the member’s] return to work would look like (days of the week/hours of the day) and the duration of such.

The member’s doctor provided a note indicating the member could return to work 2 days per week with flexible hours from January 8 to February 8. There were no restrictions on the member’s duties. The member returned to work on January 8.

The member was then notified that HR wanted to speak to the member about the doctor’s note. Sensing something was amiss, the member sought AUFA representation.

First Doctor’s Note Rejected

Article 16.5.4 requires members provide “satisfactory proof” of sickness to qualify for sick leave benefits. In a late January meeting (as the RTW was wrapping up), HR indicated it did not find the doctor’s note adequate (despite the note including the information requested in December).

HR also suggested that the member was not sick, but rather was using sick leave to provide compassionate care to the member’s partner. While the member did provide care for the member’s partner, the member’s medical leave was related to the member’s own illness.

 Schmidtke subsequently asserted:

The medical note in question indicates that [the member] is able to perform all aspects of work functions. It does not provide any reasoning for why days must be flexible, any indication of ongoing medical treatment or support or expected duration of this medical concern or any reasoning why the employee is unable to work the remaining 3 days of the week. It also does not indicate whether the employee is able to work from [the member’s] office or should be working from home.

The note did, in fact, indicate a duration (to February 8). Schmidtke also overlooked that the note did not identify any restrictions on the location of work (the member teleworked during this time, in consultation with the member’s supervisor).

 The other issues (reasoning and treatment) were not part of Schmidtke’s original request and, in AUFA’s opinion, are not information the employer requires to determine if the member is sick or not (and thus entitled to benefits and accommodation). Rather, the note itself comprises satisfactory proof of sickness. In the end, the member agreed to get a second, more detailed note from the member’s doctor in the hoping of avoiding a confrontation that would aggravate the member’s illness.

AU Interferes with AUFA Representation

 AU’s Abilities Management Policy allows AUFA members to request AUFA representation during a RTW accommodation. Some AUFA members seek representation because: (1) they are unaware of their rights; and, (2) they are not able to effectively advocate for themselves (due to the effects of their illness).

After the member agreed to get a second note, AU sent the member the form it wanted filled out. AU cut AUFA out of this communication. When confronted with this denial of representation, Schmidtke indicated:

The university will not share or discuss an employee’s sensitive medical information with anyone except the employee, or with members of the Human Resources team (as required).

The difficulty with Schmidtke’s statement is that the email contained a blank form (i.e., there was no medical information being shared).

Second Note Rejected; Vacation Time Goes Missing

The member provided a second note from the member’s doctor that contained a high-level overview of the symptoms of the member’s medical condition that limited the member’s ability to work full-time from January 8 to February 8.

Coincidentally, the member also queried the member’s available vacation time for 2018/19. The member found that 14 days of vacation leave were missing. Examining the time sheets, the member found that Schmidtke had been docking vacation leave instead of sick days during the member’s return to work. This vacation-leave docking was done without any notice to the member.

 (AU is permitted to use VT to cover periods of time when a member has exhausted sick leave benefits under Article 16.4.6. In this case, the member had not exhausted sick leave benefits. Rather, sick leave was being denied because AU asserted that two doctor’s notes were (somehow) not satisfactory proof of sickness).

AU then rejected the member’s second doctor’s note. It also refused to return the vacation leave, with Schmidtke asserting:

At this time, the vacation days will not be returned to you, as you accepted the remuneration and have access to a pay stub which would have shown the details as to how you were paid over this time period.

However, if your preference is that you want to have your vacation days reissued, please contact your HR Advisor, Seona Noseworthy, and arrangements can be made for you to reimburse AU for the Vacation days paid out to you, and we will have those days added back to your vacation bank.

Schmidtke’s assertion that failing to instantly dispute time sheets (which Schmidtke altered and submitted without notice to the member) somehow negates the grievance is incorrect. There is no requirement for AUFA members to instantly dispute errors on their time sheets. Failing to do so does not mean a member has accepted a violation of the contract.

The Grievance

AUFA grieved the theft of the 14 days of vacation time as well as the denial of the member’s representational rights. AUFA’s settlement offer was the return of the 14 days plus an agreement to allow AUFA representation of members as per AU’s own policy.

The reasons for advancing this grievance are:

  1. The member has lost 14 days of vacation pay (>$5000).

  2. AU is unreasonably interpreting “satisfactory proof” of sickness.

  3. The effect of the vacation loss is discrimination on the basis of disability.

  4. AU is interfering in AUFA’s representation of sick members.

Unusually, AU responded to both the informal and formal steps of the grievance in 2 days each. AU normally takes the full 15 and 10 working days for these steps respectively. The grievance (filed with HR Director Charlene Polege) was denied at both steps. A final effort to the settle the grievance with President Fassina (who is the executive officer in charge of HR) was also unsuccessful.

AUFA is currently advancing this grievance to arbitration. At arbitration, AUFA will also be also seeking damages for the violations of the member’s human rights and representational rights.

The Lessons

The grievance suggests several conclusions of relevance to all AUFA members:

  1. You cannot trust HR. The job of HR is to advance the employer’s interests (which is usually saving money). HR is not there to support you or administer the collective agreement in an even-handed manner (although, sometimes, that can happen).

  2. You need representation in accommodations. AU has recently developed a pattern of poorly handling accommodation and return-to-work issues. You are entitled to (and should seek) representation during any accommodation discussions, if only so you have a witness. You should also record all discussions in writing.

  3. You should check your time sheets. This grievance is not the only instance of AU altering time sheets with no notice to AUFA members. If you have been on a sick leave recently, you should check your time sheets to ensure their accuracy. If you find a discrepancy, contact the AUFA office by phone (780 675-6282) or email (aufahq@athabascau.ca)..

  4. You should (if possible) decline graduated RTWs. The purpose of gradually returning to work is to give you time to finish healing while adjusting to work again. AU’s tendency to hassle members on RTW suggests that, if your doctor gives you the option of a graduated RTW or staying off sick until you can return to work full time, you should seriously consider staying off sick to avoid making yourself a target. You may wish to print off this blog post and show it to your doctor if the topic comes up.

  5. If your spidey-sense tingles, contact your union. AU is much more aggressively managing the employment relationship (e.g., we’ve had 14 discipline cases in the same time period in which we normally have only 1). You are entitled to consult your union about employment issues. Such consultations are confidential and can be made by phone (780 675-6282) or email (aufahq@athabascau.ca).

  6. AU does not walk the talk on its I-Care values. While university administrators talk about integrity and respect, they do not live up to these values. Denying an obviously sick employee with two doctor’s notes (and whose partner also has cancer) access to sick leave and then stealing the member’s vacation leave without notice is despicable behaviour. Senior administrators did not correct this behaviour when given the chance. How is that acting with respect and integrity?

  7. Company doctors are bad news. During collective bargaining, AU proposed new language allowing it to send members to see company-appointed doctors at HR’s discretion. Company doctors exist to save employers money by denying worker sick leave entitlements. This grievance demonstrates why AUFA should never agree to company doctor language.

 Bob Barnetson, Member

 AUFA Grievance Committee

What will my boss say about a strike?

picket.jpg

When a work stoppage looms, a common employer tactic is for managers to try to undercut union support during one-on-one and small-group conversations.

Here are some things your boss might say and how you might respond.

Nobody wants a strike

Strikes and lockouts occur when employers and workers can't come to a mutually acceptable deal.

AUFA has offered a two-year wage freeze, small contract improvements, and additional negotiations on future wages. This is the same deal that tens of thousands of other public servants have gotten—including AU’s support staff.

AU is rejecting this pattern settlement. In effect, AU is saying it wants a strike more than it wants to give AUFA members a fair deal. 

A strike will hurt students 

If AU forces AUFA to strike, students will experience disruption in their studies and in administrative functions. A strike is also entirely avoidable if AU agrees to a fair deal. 

Everybody loses during a strike 

A strike entails costs to both AUFA members (foregone salary) and AU (work disruption). But not striking also entails costs, such as a wage freeze with no offsetting contract improvements. The costs of not striking are borne solely by AUFA members. 

But we’re like a family 

Your employer is not your family. AU hires you because they need work completed. AU is happy to watch your wages stagnate and to crank up your workload. As we saw in 2013, senior administrators will also happily lay you off when they bankrupt AU. Does that sound like a family?  

We can't afford to pay you more 

In 2018/19, AU recorded a surplus of more than $9 million. This was AU’s fifth surplus in six years. Enrollments were up more than 12% last year and are up again this year. AU can certainly afford to pay higher salaries. And AUFA is prepared to accept a wage freeze if AU will provide some offsetting contract gains. So this dispute isn't about what AU can afford to pay. It is about AU wanting to freeze your pay and give you nothing in return. 

AUFA will force you to strike 

AUFA is you and your coworkers. AUFA is also a democracy. A strike can only occur if a majority of voters vote in favour of a strike.  

A strike is also a last resort—something to be considered only after months of negotiations and mediation prove fruitless.  

In this way, a strike is something AU is forcing on AUFA members. 

The union can’t win a strike 

Unions win new collective agreements when the employer realizes the cost of a work stoppage is greater than the cost of a new contract. 

AU is highly dependent on tuition revenue (~50%). Even the threat of a strike is likely to cause enrollments to plummet. An actual strike will severely damage AU’s revenues and reputation. 

It would be a shame if AUFA was forced to threaten or to actually strike. But sometimes employers need to learn things the hard way. 

Bob Barnetson, Chair

AUFA Work Stoppage Planning Committee

 

AUFA wins permanent jobs and damages for term academics

601px-Temporary_plate_green.svg.png

 Earlier this month, AUFA successfully concluded a long-standing grievance about the mis-use of term staff in the MAIS program. The crux of the grievance was that AU had improperly used or extended limited-term appointments under Article 5 of the collective agreement.

The effect of this behaviour was to make the employment of 9 AUFA members precarious and deny them certain benefits under the collective agreement. The arbitration resulted in a combination of permanent appointments and/or damages paid to the affected AUFA members.

The Grievance

Article 5 outlines when it is appropriate to use limited-term positions.

Link to agreement

5.2 A term appointment shall be for a contractually limited period, and shall terminate automatically on a specified date. It shall not carry any implication that the term appointee will be considered for a regular appointment. A term appointment will normally be made where one or more of the following conditions apply:

d. the duties associated with the position are for a limited period and are not expected to be required to be performed after the specified date;

5.5 a. a term appointment may commence at any date during the year. With the exception of term appointments made under 5.2 c, f., and g., a term appointment will not normally exceed two (2) years;

AU repeatedly hired certain term employees, in some cases for more than a decade, to perform work that clearly was not temporary. Hiring these members as term employees made their employment precarious and denied them certain benefits under the collective agreement.

Arbitration and Decision

AUFA filed this grievance on April 14, 2015. After lengthy efforts to resolve this issue were unsuccessful, AUFA moved this grievance to arbitration. Hearings took place in November of 2016, with 5 witnesses testifying and over 150 exhibits submitted.

Arbitrator Andy Sims released a decision in August 2018 that determined:

[T]he ongoing nature of most courses, the proven demand for those courses, and thus the need for people like the grievors to teach those courses, establishes that the need could not reasonably be seen as term limited and unlikely to continue. I find the University’s handling of the MA-IS work demands through the excessive creation and use of term positions violated the provisions of the collective agreement. (pp. 67-68).

Had the agreement been followed rather than breached by the creation of temporary positions beyond the parameters of Article 5, the University would have either discontinued the MA-IS program or else, and this is in my view far more likely, created at least two regular positions for academic coordinators. … On balance, I find that, had the University appropriately created the regular positions I describe, the grievors would have applied for and obtained those positions. (p. 68)

Remedies

Sims gave the parties 45 days to work out reasonable remedies. AU declined to meaningfully engage in discussions of remedies with AUFA for the remainder of 2018.

In March of 2018, Sims mediated a settlement affecting the 9 AUFA members.

While the specifics of the settlements are confidential, each grievor has received some combination of a permanent appointment and/or damages.

AU has also agreed to no longer use term positions in a way that violates the collective agreement.

The Lessons

This grievance holds lessons, both about grievances and about Athabasca University as an employer:

1. Grievances are slow. The contract violations date back as far as 2005. It took 5 years to bring to about resolution after the grievance was filed. The pace of grievance arbitration is hard on grievors. Employers know this and drag their feet in the hope of wearing the grievors and the union down. An alternative to a grievance is taking direct action in the workplace.

2. Grievances are expensive. AUFA spent approximately $100,000 on this grievance (not including staff and volunteer time, which were substantial). AU’s costs were likely higher because their law firm charges more. Whatever AU saved in staffing costs (by violating the agreement) was almost certainly exceeded by its legal bill and the cost of remedies.

3. AU violates the contract. This decision is another example of AU egregiously violating the agreement that it signed. Such behaviour is profoundly damaging, both to the individuals’ affected and institutional morale. This is a pattern of behaviour at AU and you can read about another example here:

Link to another example.

4. AU drags out settlements. AU was unwilling to meet with AUFA to discuss remedies following the decision. AU’s executive will not even discuss grievances with AUFA. Consequently, AUFA was forced to return to the arbitrator (incurring additional costs for both parties) in order to get remedies for the members.

It is a shame that AU does not live up to its I-Care values of integrity (which entails “ethics, honesty and fairness in all our actions, engendering trust within our university community”) and respect (which includes “an environment in which every individual is valued”).

Jolene Armstrong, AUFA President

Conference Talking Points on AUFA Bargaining

Unknown-3+copy.jpg

Bargaining between AUFA and AU has reached a standstill. This raises the spectre of a strike or a lockout within the next year.

Some faculty members have asked how they might talk about this situation if it comes up during the upcoming conference season. The talking points below may be of use:

The Situation

  • AUFA and AU have been in bargaining for more than a year, and without a contract, since July 1, 2018.

  • AU is demanding a wage freeze despite a $9m surplus and >12% enrollment growth.

  • AU is unprepared to offer any quid pro quo for the wage freeze.

  • After 19 days of bargaining, it appears AUFA and AU have reached impasse.

Pathway to a Strike

  • AUFA has requested informal mediation on June 17 and 18

  • If this informal and formal mediation fails, AUFA will proceed towards a strike vote.

  • AUFA expects a strike vote will be held in the early autumn.

  • Once a strike mandate is in place, AUFA can strike with 72 hours of notice.

Impact of a Strike

  • Approximately 5000 students will be without instruction (i.e., teaching or marking) for the duration of a strike.

  • AU’s administrative functions (e.g., Registrar, IT, Library) will also be impeded.

What You Can Do to Help

  • Students: Advise any students considering taking an AU course of the risk of a work stoppage, so that they may make an informed decision about enrolling.

  • Faculty: Contact AU President Neil Fassina (neil.fassina@athabascau.ca) and ask him to conclude an agreement to avoid a strike.

Bob Barnetson, Chair

AUFA Work Stoppage Committee

barnetso@athabascau.ca