Designation Update
A recurring issue AUFA has faced is AU’s efforts to carve out members from AUFA’s bargaining unit. This process is referred to as ‘de-designation’. De-designation was the most frequently mentioned issue in AUFA’s spring member engagement survey.
This blog summarizes the issue for new AUFA members and provides an update on where matters stand.
What is Designation?
Designation is the power given to the Board of Governors in the Post-Secondary Learning Act to determine which individuals or positions are considered to be academic staff members. These individuals and positions then comprise the membership of the faculty association bargaining unit. This arrangement is different than almost every other union, wherein the workers choose which union they wish to represent them.
Under AU’s 1983 designation policy, all AU employees whose jobs are categorized as academic (i.e., assistant, associate, and full professors as well as academic coordinators) or professional (e.g., library, facilities, IT, registral, course production, and administrative staff) were designated as academic staff members and, thus, members of AUFA.
The result is a bargaining unit that has a much broader membership than is common in bricks-and-mortar universities. This was, in part, a reflection of AU’s unique model: quality distance education is a collaborative effort, with many individuals contributing to the success of a course or program. It also reflected AU’s relatively small size and he need for a critical mass of workers to make a union viable.
2020 Policy Change
In late 2019, AU informed AUFA that AU would be reviewing its designation policy. The changes AU first proposed would have immediately removed approximately two-thirds of the AUFA members from the union. This included academic coordinators, deans, associate deans, managers, and all professional staff. It is unlikely AUFA would remain financially viable as an independent union with such a catastrophic loss in members.
AU never provided a credible explanation for this radical change. The most likely explanation is that AU is seeking to destroy AUFA’s strike threat by removing as many members as possible. In the long-term, this would result in worse salaries and benefits for the remaining AUFA members, as well as for the de-designated staff (see below for a more detailed explanation of the impact of being de-designated).
Throughout 2020, AUFA members applied pressure to AU to walk back these changes. This pressure included petitions, letters, emails, a public campaign, picketing, and, ultimately, organizing a transfer credit boycott threat. A revised policy was approved in September 2020. Shortly thereafter, AU president Neil Fassina departed for a lower-paying job at a community college for reasons that he declined to explain.
AU’s new designation policy created a process by which AU can de-designate AUFA members. A strict interpretation of the new policy would make it possible for AU to reduce AUFA’s membership to research-based professors only (approximately one third of its present size).
Under the procedure associated with the new policy, AU must identify any positions it seeks to de-designate and consult with the affected unions and staff members. Any resulting de-designations can be challenged at the Alberta Labour Relations Board.
2021 De-designations
In the spring of 2021, AU notified AUFA of its intention to de-designate the five deans, thereby removing them from the AUFA bargaining unit. AU’s business case for this de-designation demonstrated the VPA had little grasp of what the deans do on a day-to-day basis. This de-designation came after years of failed attempts by AU to exclude the deans through a concessions-only bargaining approach.
The IT optimization process also saw AU dis-establish a number of AUFA manager positions and re-create them as excluded manager positions. AU has also been hiring to new positions that, historically, would have been in AUFA, but are now excluded. This “nickel-and-dime” strategy to de-designation is likely designed to be grind AUFA numbers down over time while forcing AUFA to fight as series of small actions.
AUFA has responded to the de-designation of the Deans and IT managers by filing an Unfair Labour Practice complaint with the Labour Board and submitting a grievance to AU on the poorly done IT Re-Organization and removal of some IT managers from the Association. These complaints are presently in process and we will update members as they are heard.
AUFA has also proposed limits on AU’s designation authority in the collective agreement.
What happens if I am de-designated?
If you are de-designated, you would continue to have an employment relationship with AU and similar job duties. You may be represented by a different union or you may become a non-unionized employee.
Your substantive rights as set out in the AUFA collective agreement (e.g., wages, leaves, and benefits) are unlikely to change in the short term. AU may subsequently seek or impose changes to your wages and benefits. It will be easier for AU to impose changes if you are a non-unionized employee.
Your continued access to procedural rights (e.g., the discipline process, probationary and reclassification, and workload appeals) may continue, may continue with changes, or may be discontinued, depending upon the specific right and whether you become a member of another union or become non-unionized. AU may also subsequently seek or impose changes to your procedural rights. It will be easier for AU to impose changes if you are a non-unionized employee.
Professionals
AUFA believes the de-designation of professional staff would result, at least initially, in professionals becoming non-unionized (i.e., excluded) employees. If professionals become non-unionized as a result of being de-designated, they would then have individual contracts of employment operating under the common law.
It is likely that these contracts would initially contain the existing provisions around wages, benefits, and other entitlements. They would also contain some of the procedural rights set out in the collective agreement. It would be up to individual employees to enforce those rights (i.e., pay for their own lawyers) if the employer violated the new individual contracts or sought to impose discipline or terminate them.
Under the common law, the employer could propose changes to the contracts of employment. For example, AU could seek to eliminate sabbaticals or reduce layoff notice in order to reduce costs. AU would need to offer to some consideration (i.e., something of value) in exchange for the contractual change. But what AU offered would not necessarily have to be of much value. For example, AU could offer a few extra days of vacation this year in exchange for eliminating sabbaticals (which are worth about 15% of wages).
If the individual workers did not accept the proposed change, the employer may be able to terminate the workers’ employment by providing whatever termination provisions existed in the contract. This dynamic reflects that the job protection and bargaining power of individual employees is weaker than those of unionized employees. Indeed, this loss of power may be one of the attractions to AU of de-designating professionals.
While AUFA believes the most likely scenario following de-designation is that professionals would become non-unionized employees, it is possible that professionals might be rolled into the AUPE bargaining unit by the Labour Board during the litigation around de-designation. In this scenario, some (possibly all) IT employees would not be eligible to join a union due to specific IT exclusions in the Public Service Employee Relations Act.
If this was the case, AUPE would “take over” the AUFA collective agreement for professionals who were transferred to AUPE. Subsequently, AUPE would need to either negotiate a new agreement for professionals or incorporate professionals into the existing AUPE agreement. It is also possible that professionals might subsequently be organized by another union (again, note the possible IT exclusions). In this case, the other union would then need to negotiate a new collective agreement from scratch.
Academic Coordinators
We believe the de-designation of academic coordinators would result in academic coordinators becoming a part of the CUPE bargaining unit (which presently represents “all non-designated academics”).
In this case, CUPE would “take over” the administration of the AUFA collective agreement for academic coordinators. Subsequently, CUPE would need to either negotiate a new agreement for academic coordinators or incorporate academic coordinators into the existing CUPE agreement.
AUFA expects that AU would seek to reduce the rights and entitlements of academic coordinators during any subsequent collective bargaining. It is unclear if CUPE would be able to maintain academic coordinators’ current rights and entitlements in the face of aggressive AU bargaining. A review of wage settlements at AU shows that CUPE wage settlements have significantly lagged behind AUFA settlements.
Deans and Managers
AU previously indicated that it desired to de-designate deans, associate deans, and managers (although AU walked back the associate dean exclusion). AUFA believes that, if AU de-designated these positions, they would become non-unionized (i.e., excluded) employees. Any excluded employees would have individual contracts of employment operating under the common law.
Similarly to the professionals (above), these contracts would initially contain existing provisions around wages, benefits and other entitlements. They would also contain some of the procedural rights set out in the collective agreement. It would be up to individual employees to enforce those rights, and the employer could then propose changes to the contracts of employment or seek to terminate them.
It is not perfectly clear if terminated deans and associate deans would have a right of return to their faculty positions under the AUFA agreement. AUFA suspects a return would be possible under the current agreements in place for deans and associate deans. AU has repeatedly refused AUFA’s request to remove a portion of decanal contracts that could allow them to terminate a dean as both dean and professor.
Pensions
AUFA members are currently enrolled in the Universities Academic Pension Plan (UAPP). We expect that all contributions made by AUFA members prior to de-designation would be protected and de-designated AUFA members would be eligible to receive a pension based upon these contributions.
It is unclear whether AUFA members would continue to be eligible to be members of UAPP if they are de-designated. UAPP’s pension agreement (page 102) indicates that AU employees who are eligible to be members of UAPP comprise:
Academic staff (as that term is defined in the Universities Act), executive, management, and supervisory employees of Athabasca University (as those terms are defined by Athabasca University and filed with the Plan Sponsors) … (p. 102)
Academic coordinators and professionals who are de-designated would not likely be eligible to continue in the pension plan. By contrast, deans and professionals with the title of director or manager may still be eligible for UAPP membership based on the management and supervisory categories above. The newly excluded managers in the IT department have remained on UAPP for this reason.
It may be that AU would make provisions for members ineligible to continue with UAPP due to the proposed policy to join a different pension plan (AU refused to address this during the 2020 consultations.) An important question in any transfer is whether the terms of the pension are comparable (e.g., some pension plans have an 85 factor (age plus years of service) to get a full pension, while UAPP has an 80 factor).
It may also be possible for AU to alter its definitions on file with UAPP to maintain pension membership eligibility for de-designated staff. This is obviously an issue AUFA will be raising when AU begins consulting with AUFA about specific de-designations.
Conclusion
AU’s efforts to de-designate a significant portion of AUFA’s membership has significant consequences. Those AUFA’s members who are de-designated will likely see their terms and conditions of employment worsen. Those AUFA members who remain in the smaller AUFA unit will have less bargaining power and a less effective strike threat so will be more vulnerable to rollbacks.
There is no compelling rationale for any de-designations at AU. The current arrangement has worked well since 1983. The most likely rationale for this is that AU is trying to use its de-designation power to advantage itself at the bargaining table and reduce it labour costs.
AUFA is committed to fighting each de-designation.
Your Turn
The AUFA executive is interested in your feedback on de-designation.
Dave Powell, President