Clarification on AU's Election Communication

As you may be aware, VP Kristine Williamson sent an email regarding communications during the election period. Some members have expressed confusion and concern about the possible limitations. AUFA has sought information from Ms. Williamson, Elections Alberta, the Ministry, and sister organizations to clarify this communication.

Last month, the Government of Alberta published its Election Communication Policy, which restricts “government advertising and other communications activity to ensure that governments neither involve themselves in nor influence elections.” Universities are specifically mentioned as an entity that is to comply with this policy which is available online.

The Elections Act allows the University to continue with communications that are “continuous and “required” but the institution must ensure its communications are in step with provincial requirements during the writ period. The policy is not intended to limit or interfere with academic freedom and does not preclude staff members from engaging with political parties, their candidates or other political party representatives in conducting teaching and research.

Some key guidelines:

1. Athabasca University cannot make contributions (money or donations in-kind) to any political party or candidate running in an election.

2. University funds cannot be used to cover the cost of attending partisan political fundraising or campaign events.

3. University resources cannot be used to promote partisan political events or campaigns.

4. This would include using your AU email address for partisan political purposes, including distributing campaign information, forwarding campaign materials received in your AU email inbox, or using university mailing or email lists to distribute campaign materials.   

5. Election signs and posters for candidates may only be placed on the publicly available bulletin boards inside university buildings.  Signs placed elsewhere may be removed.

AUFA will reiterate that the University must recognize the right of students, employees, and professional and academic staff members to participate as individuals in the political process provided they do not use university resources to do so. The pursuit of academic activity related to the election is an important and acceptable activity, subject to applicable legislative frameworks. 

If you are planning an event or meeting during this time where you would normally consider extending invitations to provincial elected officials, please contact your supervisor first.

AUFA Executive Statement on New Zealand Terror Attack

AUFA expresses deeply heartfelt condolences to all affected by the recent mass shooting in New Zealand, followed by the shooting in the Netherlands on Monday. AUFA joins in the mourning of the victims of this terrorism. In this time of sorrow, AUFA reaffirms that it strongly condemns racism, discrimination, and religious intolerance of any kind and urges anyone who experiences threats to contact the AUFA office.  AUFA would also like to remind its members that if dealing with any distressed students, Athabasca University has a Counselling Services Unit that they can approach to address matters of a personal or sensitive nature. 

—Jolene Armstrong, AUFA President

Is Athabasca University Prepared for a Work Stoppage?

With the risk of a work stoppage ongoing, a number of AUFA members have raised important questions about how a work stoppage would work in practice.

The work stoppage planning committee pooled these questions and posed them to Alain May (head of AU’s bargaining team) and Charlene Polege (AU’s Director of HR).

The questions we asked were:

1. Will AU be limiting or disabling AUFA members’ access to AU’s email systems during a work stoppage? This has implications for ongoing research and disciplinary service work.

2. How will AU handle ARL, PD and vacation leaves that are underway when a work stoppage commences? Will the leaves be suspended for the duration of a work stoppage and then resumed once the work stoppage ends?

3. AUFA members often book conference attendance months in advance. If an AUFA member is booked to attend a conference during a work stoppage, will AU reimburse expenses associated with conference attendance (which will mostly be incurred regardless of whether or not the member attends) from PD, APDF, and research grant funds?

4. How will AU handle AUFA members on causal sick leave (of up to six months) during a work stoppage? Specifically, will AU continue their salaries or suspend such payments?

5. How will AU handle AUFA members on Research and Study Leave (i.e., sabbatical)? Will such members (some of whom will be overseas) have their pay suspended? Will sabbatical be suspended and extended based upon the length of the dispute?

6. How will the AU handle AUFA members on term contracts? Will their terms be suspended and extended (which may make sense if they are covering leaves that will also be extended)? Or will their contracts be terminated? Will term members who are CUPE members who are temporarily in AUFA revert back to CUPE appointments during an AUFA work stoppage?

7. Approximately 200 AUFA members work from home offices and privately pay for telephone and internet access required for their job (for which they receive a stipend). Will AU continue to pay for these services during a work stoppage? If not and, consequently, AUFA members disconnect these services, will AU pay for reconnection fees (plus knock-on costs like new business cards, new letters to students)?

8. Many AUFA members have possession of AU computers. Will AU ask that members return computers to AU for the duration of the work stoppage? Will AU attempt to remotely limit the operation of these computers (which, again, has significant implications for research and external service activity)?

9. Some AU programs have practicum (or clinical) components where AUFA members teach and supervise students in a professional setting but that do not appear to meet the definition of an essential service (I’m specifically thinking about undergraduate nursing practicums). How will AU handle such practicums when notice of a work stoppage is served? Will the practicum be suspended and resumed? Or simply discontinued? I would expect that students would also want to know the answer to this question.

10. AU has certain contractual obligations (e.g., to supply data to third parties) associated with grants. How will AU meet these requirements during a work stoppage? If AU cannot meet these requirements, will AU be alerting third parties to the disruption?

Polege’s response (in its entirety) was:

Thank you for your email. At this time in the bargaining process we are focusing our energy on finding creative solutions that will result in a collective agreement.  If and when there is a strike, we will share information that we deem appropriate within the 72 hour notice period.

One explanation for this unsatisfactory response is that AU hasn’t put its mind to how a work stoppage would actually work. An alternate explanation is that AU is withholding this information as a form of leverage. And, of course, both of these things could be true.

Since AU does not seem prepared to address these questions, the work stoppage committee recommends you email any questions you have to your supervisor, cc’ing Polege. cpolege@athabascau.ca

Bob Barnetson, Chair

Work Stoppage Planning Committee

Bargaining Chair Response to President Fassina’s Message to the AU Community

On February 7th, AU President Neil Fassina sent out a direct communication to AUFA members, other AU staff, and students in the form of an open letter and ‘Fact Sheet’ in an attempt to characterize the Board’s proposals as beneficial to AUFA members. Attached is Chief Negotiator Dr. Eric Strikwerda’s response to AU’s Fact Sheet.

In good faith, AUFA will return to the bargaining table starting February 12th in the hopes that the Board team have changed or withdrawn their objectionable language.

Please click the below link to read the AUFA response.

Proposal Vote Update

On Tuesday, AUFA applied to the Labour Relations Board for a proposal vote by the Board of Governors (BoG) on AUFA’s most recent proposal. A few members have questions about this process and we thought sharing the answers might be helpful.

1. What is a proposal vote?

Once per round of bargaining, each side can request the other side vote on a proposal even though the other side’s bargaining team has rejected it. If the proposal is accepted, then the collective agreement is settled. If the proposal is rejected, then bargaining continues.

2. Who votes on this proposal?

The employer has the power to determine how it will handle a vote. The entire Board could cast a vote (with a majority rules arrangement) or the Board could designate a group or an individual to cast a ballot.

By contrast, if AU applies for a proposal vote of AUFA members, each AUFA member would be entitled to vote and the majority would rule. (This is one of those asymmetries that exist in labour law.)

3. Why did AUFA choose to apply for a proposal vote now?

There are a couple of reasons the executive decided to authorize a proposal vote now:

• We believe that the BoG bargaining team is taking a more aggressive stance than the BoG itself would approve. A proposal vote after impasse has been reached forces the BoG to recognize that their bargaining team’s strategy is not working. It also gives the BoG a way out (e.g., sign this pattern proposal and get 5 years of labour peace) before things escalate further.  

•  Bargaining coming to impasse is a disheartening event. Filing a proposal vote demonstrates that we are not passive victims and we still have power in this dispute. It also demonstrates that AUFA is doing everything it can to avoid an actual work stoppage (which is unnecessary, but for the employer’s intransigence).

•  We could think of no good reason to save this tactic for a later time. If it is successful this dispute is over (so big potential reward). If it fails, it cost us nothing (so low risk). If it fails, it also demonstrates to everyone (e.g., our members, the government, students) that the barrier to resolution is the BoG.

 4. What is AUFA’s proposal?

•  AUFA advanced its December 5 proposal. The nub of it is:

• A five-year contract (July 1, 2018 to June 30, 2023).

• A wage freeze in years 1 and 2.

• A wage re-opener (i.e., further negotiations) in years 3-5 with impasse resolved by arbitration.

• Four language improvements addressing on-call pay, spousal hiring, converting term positions to regular positions after a fixed period of time, and provisions addressing intellectual property.

• Numerous housekeeping proposals made by the employer. Some of these were included in the December 5 offer,and some were agreed to in January (and which AUFA would honour if AU accepts the December 5 proposal).

5. Can I see AUFA’s December 5 proposal?

Yes, absolutely.

The proposal itself can be a bit hard to read, so we have posted a detailed summary here. The summary includes the entirety of the new language AUFA has proposed. We have also summarized the house-keeping items to reduce the length and complexity of the document.

For example, AUFA has agreed to get rid of much of Article 6.3 (which governed collective bargaining) because moving under the Labour Relations Code makes these provisions irrelevant. So we’ve summarized that as “6.3: Deleted; replaced by bargaining language in Labour Relations Code.”

The actual proposal includes all of the language that is being struck out and makes for hard reading. If you really, really want to grind through the whole thing, we can send you several pdfs as well as the existing collective agreement (which you will need to read side-by-side with the changes).

6. When will the results of the vote be known?

At this point, no date has been established. At present, we’re hearing probably 2.5 weeks, but it depends on whether AU objects to the vote of not. Obviously we’ll report the results as soon as we know them.

—Bob Barnetson, Chair

Work Stoppage Committee

Why is the Employer Acting This Way?

This is a question we get a lot from members at the Athabasca University Faculty Association office. While we want to caution people against too much speculation, we do want to offer some insight into the employer’s actions, and some insight into what is driving the bargaining process when we can base these insights on facts. Below, we will lay out the major factors influencing the Board of Governors' aggressive approach to bargaining:

Money

The administration sees AU making substantial surpluses, and they want to earmark that money for their own pet projects, rather than staff compensation. Administration also sees current staff agreements as a source of funds that could go towards other items. Such items may include raises for senior staff, more personal assistants for executives and senior University officials, or money for projects and programs they are personally invested in.

A previous Vice President Finance once remarked in a Board of Governors meeting that a raise in the AUFA bargaining unit of 1% would cost the institution about $400,000 per year. Based on our numbers, using the median income of the AUFA unit of approximately $100,000/year, that number is an accurate rough estimate. By these numbers, AU could afford a substantial raise for the AUFA unit while still putting money into reserves and other projects. Our current projected surplus is $9.1 million for this year, on top of multiple surpluses in past years.

While we have mostly done an analysis of contract language in these blog updates, it’s worth commenting that so far AU has not even entertained a wage re-opener beyond years one and two (the years we are told the government has mandated zeroes). By offering a wage freeze in line with the rest of the public sector, AUFA is being exceedingly generous given AU’s current financial health. Asking for modest improvements to contract language -- instead of drastic cuts -- is a predictable and reasonable move.

The Strategic Flinch

Another factor worth considering is our President’s own Academic research on “The Strategic Flinch”, linked here.

In his research, Dr. Fassina puts forward (backed up with data) the idea that there is a strategic argument to be made for turning up the heat emotionally at the table and pressuring negotiations. During bargaining, there has been no shortage of emotional outbursts towards AUFA from the Board’s team, including castigating AUFA for refusing to sign language that is clearly not in the union’s interest, and accusing the union of bad faith when we have in earnest turned down language our own members rejected through our polling.

Almost all of these outbursts have been from their legal counsel. Even when obviously wanting to take the AUFA team to task, AU staff at the table for the employer have been exceedingly reasonable. However, it is notable that passages like these seem to reflect the employer’s approach at the bargaining table:

“When people believe that they have given offence, self-regulation theory suggests that they may be motivated to try to restore the relationship to its former state by conceding to or demanding less of their counterparts than they might have otherwise (e.g., Baumeister et al. 1994, 1998; Greenberg 1988; Hassebrauck 1986). Similarly, negative emotions are negative reinforcers of behavior, thereby calling for a behavioral adjustment (Cacioppo and Gardner 1999; Fischer and Roseman 2007). In short, a flinch may affect the distribution of value because of both cognitive and emotional factors.” (Fassina 2013)

If the employers’ package and the over-the-top pressure put on the bargaining team is simply an attempt to shift the “value proposition” of the bargaining, our best response for the union membership is to call the bluff and not give in. There is a good argument for us holding our ground. Allowing the employers’ tactic to work this time would invite more aggressive behaviour in the future and encourage unreasonable approaches to bargaining. The best way to deal with a tactic we don’t like is to not allow it to be effective, and in this case its effectiveness is largely up to us anyways.

There is also a downside to this strategy for the Board of Governors, as Dr. Fassina himself puts it:

“Not all of the findings, however, were positive with respect to the utility of flinching. Negotiators on the receiving end of this tactic perceived the bargaining relationship more negatively than negotiators in the control condition, even when controlling for objective performance. The additional value claimed in the short term by those who flinch in distributive bargaining may therefore come at the expense of long term gains. Although flinching leads to enhanced value claiming, the findings suggest that this tactic may diminish the desire of others to negotiate with us in the future. If so, future opportunities to reach agreements and to create value will be lost.” (Ibid.)

According to his own research, this leads to less desire to negotiate; in a real estate deal, for example, the likely outcome is a failure to sell a house. If impasse cannot be solved by the parties in collective bargaining, the outcome is a labour disruption. Lingering resentment, divisions in a small town created over tensions in its largest employer, and more bad press for the university then become entrenched problems.

UNION AVOIDANCE

In the past, we have discussed the Athabasca University Board of Governor’s decision to appoint external legal counsel as their chief negotiator. It is worth noting what kind of labour law Chantel Kassongo practices. While there is no doubt that some employers will drive a hard bargain, there is also a line between that and outright trying to “break” the union with which you are bargaining. Typically, these are called union avoidance strategies; see Dr. Bob Barnetson’s discussions of these strategies here.

Kassongo regularly uses these strategies, and further, employer groups frequently invite her to teach employers how to keep their businesses ‘union free’. While it may seem counter-productive for a lawyer who deals with unions for a living to teach businesses how to eliminate unions, it is a very lucrative line of work for some lawyers and Human Resources practitioners.

These strategies include offering incentives to employees while bargaining is ongoing (like paid time off above and beyond what the employer otherwise usually gives), combined with punishments such as retaliating against members who file grievances, singling out union officers for different treatment, and failure to abide by timelines for the resolution processes in the collective agreement. Often a business that embarks on this path will hire a lawyer with some experience in these strategies in order to stay on the right side of the law, and to protect under legal privilege any discussions around said strategy. Generally speaking, some losses in labour board hearings and arbitrations are considered an acceptable outcome if the ends are sufficiently favourable to justify the means.

It is easy to simply focus on the person providing these services, but responsibility for using these strategies rests with the Board of Governors. Why would the Board of Governors work so hard to antagonise the largest bargaining unit in their workforce? Why would the Board employ such a consistent and far-reaching union-avoidance strategy?

Power

Many comments made both at and away from the bargaining table indicate that the employer desires a greater degree of control over the workforce.This is generally known as Managerialism. As it stands, the employer has said they feel the protections for academic freedom at AU are too strong and have signalled that this may be a place they want to seek concessions from the union in future. They intend to start with professional freedom and then roll academic freedoms back from there. Most of the employer’s demands are to do with hiring, determination of duties, promotion, severance, the grievance procedure, and discipline. All of these exist as important protections against an employer’s ability to curtail the career prospects of its critics and its ability to target union activists.

While many AUFA members are likely happy with their jobs at AU, we don’t have to look too far into our past to a time when most people felt extremely insecure. That kind of environment is not conducive to academic excellence, and it is not a coincidence that those years of insecurity and layoffs at AU were also years during which AU’s enrollments struggled and our budget was tight.

Our members want to defend their rights because they have seen what a blank cheque in the hands of the Board of Governors to lay people off has looked like. Those years were not great for AU staff, for our students, or for AU’s institutional reputation.

Moving Forward

Athabasca University should be a workplace where employees are hired and assessed reasonably by their peers. Where discipline is not arbitrary. Where dissident voices are not easily silenced by those who have power inside the institution, and who in turn can be pressured by those who have power in society at large. Where work is assessed and distributed equitably, and where people who are experts in their field can appeal management decisions to their peers. These are basic questions of job security, of dignity, and of respect for the work our members perform.

The Athabasca University Faculty Association believes that those who carry out the day-to-day work at AU have the best interests of the University at heart and should retain their ability to participate in AU fully in the way that they have until now. Athabasca University is currently a success story, and AUFA members deserve a lot of credit for that success. AUFA believe that the AUFA contract, and the rights that AUFA members enjoy through that contract, is essential for our continued success. Athabasca University clearly believes that AUFA members enjoy too much freedom, and that AU suffers from too much collegiality.

It is absolutely baffling that an employer who is doing so well would jeopardize all of this progress simply to “fix” something that is clearly not broken. That said, we are confident that AUFA’s members are not buying it, and we are certain they have what it takes to stand together and defend their hard-earned rights. Not for ourselves, but for the good of AU and the many communities it serves.

—Nick Driedger, AUFA Executive Director

Bargaining Reaches Impasse - What Next?

On Tuesday, collective bargaining between AUFA and the Board reached impasse. For reasons outlined in the bargaining update, AUFA’s bargaining team has been forced to conclude that no further progress towards a collective agreement is likely at this time.

So what now?

Here is a thumbnail sketch of what is likely to happen in the next few months as AUFA’s bargaining and work stoppage teams continue to work towards achieving a collective agreement.

1. Continue Bargaining: Even after impasse has been reached, it is not uncommon for parties to resume bargaining at a later date. For example, political pressure on AU may cause them to reconsider what AU’s true bottom line is. Bargaining can resume at any point and is most likely to be the way that this dispute is eventually resolved.

2. Negotiate an Essential Services Agreement (ESA): The parties are required to negotiate an ESA in order to maintain certain services during a work stoppage. The threshold for deciding which services would be maintained includes whether the cessation would endanger the health, safety, or life of the public.

   AUFA and AU met to negotiate an ESA on January 15. AU’s position at the meeting was that (1) AUFA members do not perform essential services and that, if they do, (2) those services can be performed by non-bargaining unit staff. AUFA expects these negotiations to conclude this Friday, and we will probably need to have the matter adjudicated.

3. Commence Formal Mediation: When bargaining reaches impasse, either side can request formal mediation by a government-appointed mediator. At this point, negotiations continue in the presence of the mediator, in hopes that a final agreement can be reached.

   If a final agreement cannot be reached in mediation, a mediator will often issue a recommended settlement that the parties are obliged to vote upon. If both parties accept the recommendation, then it becomes the new collective agreement.

   If either party rejects the recommendation, then mediation is concluded, and the dispute continues. There is a 14-day cooling-off period following mediation.

4. Strike Vote and Lockout Poll: Once the 14-day cooling off period ends, AUFA can apply to the Labour Relations Board (LRB) to hold a strike vote. The employer can also apply to hold a lockout poll.

   A successful strike vote by AUFA members is required before AUFA can go on strike. A successful lockout poll by the Board of Governors is required before AU can lock AUFA members out.

   Once a strike or lockout mandate has been achieved, either side can initiate a work stoppage, with a 72-hour notice to the other side.

5. Proposal Vote: At any time during the bargaining process, either party can apply to the LRB for a proposal vote. As the name suggests, a proposal vote forces the other side to vote on a proposal.

   For example, AU may apply to the LRB for a proposal vote of AUFA members. AUFA members would then be given an offer to examine and vote on (accept/reject). If a majority of AUFA members who vote were to accept the proposal, then the proposal would form the basis of a new collective agreement. If the majority rejected the proposal, then the bargaining process would continue.

   Each side is allowed can apply for a proposal vote only once each over the entire course of bargaining. Such a vote gives each side an opportunity to do an end run around the other side’s bargaining team. The rationale is that bargaining teams may be holding onto a firmer position than the membership that they represent. The threat of an end run is intended both to discourage and to remedy hardline bargaining.

6. Arbitration: The Labour Relations Code allows both parties to agree at any time to have a dispute resolved via arbitration (i.e., settled by a neutral third party). There are risks associated with arbitration, the key one being the tendency of arbitrators to “split the difference” between two positions.

   In our case, AU’s unwillingness to withdraw its most egregious proposals would leave AUFA vulnerable to the possibility that the arbitrator would accept some of AU’s proposals in order to “give” each side something. For this reason, the specific context of arbitration—that is, what remains in dispute—plays a significant role in whether this option is desirable or not.

So what is the timeline for a work stoppage?

It is hard to predict the process and timing of a dispute once bargaining impasse has been reached. A very rough estimate is this:

• Application to the Labour Board to settle an ESA: February-March

• Formal mediation: April-May

• Strike Vote/Lockout Poll: June at the earliest.

Once achieved, a strike or lockout mandate is valid for 120 days (i.e., the work stoppage must start with 120 days; the work stoppage can continue indefinitely).

Can AUFA win if there is a work stoppage?

Yes. The key to a successful strike is to apply enough operational and political pressure to AU to bring them back to the bargain table with an offer that is acceptable to AUFA members. For example, the current Alberta settlement pattern is two years of wage freeze offset by language improvements for the workers and a wage re-opener (i.e., further negotiations on money) in years 3 and 4.

AUFA members perform pivotal functions at AU, and the university will not be able to operate effectively without us. As one example, academic members of AUFA teach over 5,000 students at any one time. During a work stoppage, those students would see their course progress suspended. (AUFA is currently working to ensure that AU is unable to assign these students to other instructors.)

The suspension (or threat of suspension) of instruction for a significant number of students will have profound reputational and enrollment impacts upon AU (particularly given that 50% of AU’s revenue is tuition based). This sort of profound consequence suggests that AU will eventually be forced to negotiate an acceptable collective agreement.

There are similar examples available related to the work of AUFA’s professional members.

What happens if AUFA members won’t authorize a strike?

If AUFA members don’t authorize a strike, then AU will be able to impose its rollbacks on us through a short lockout.

Indeed, it may be that AU is counting on AUFA’s member to be unwilling to strike and that explains their aggressive posture at the bargaining table.

What happens next?

AUFA’s work stoppage team will continue its preparation. The immediate task is to conclude an Essential Services Agreement. This may entail applying to the LRB for adjudication by the Essential Services Commissioner.

Bob Barnetson, Chair

Work Stoppage Planning Committee

AUFA President's Statement on Christmas Eve Closure

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.

Sincerely,

Jolene

jolenea@athabascau.ca