Know your contract: Discipline

Over the past twelve months, there have been 12 disciplinary investigations of AUFA members under Article 7 of the collective agreement. In past years, there were between 1 and 3 such investigations. This seeming increase is largely the result of Human Resources moving from informal processes to more formal ones. Although formal investigations are nerve-wracking, they ensure that investigations follow the rules in our Collective Agreement. 

The above chart breaks down status of discipline cases that were active in the past year. Of the twelve cases over this past year, three have resulted in discipline thus far.

Investigation: Article 7.3

When the employer wishes to investigate a potential problem with an AUFA member, they must follow the rules set out in Article 7 to conduct the investigation. It is up to HR to determine what is worthy of investigation or not. If HR wishes to commence an investigation they must:

• Inform the AUFA Executive Director.

• Inform the member, and ensure they understand their right to union representation.

To conduct the investigation, HR will use either an HR officer, or hire an external contractor. An initial meeting is held to discuss the allegations with the member with a union representative present. The investigator will then normally conduct interviews with affected parties within the workplace and gather evidence to determine what happened. 

During the investigative process, Human Resources may elect to place a member on paid leave. This typically occurs only with with more serious allegations. It is important to understand that members subject to this process have not been found guilty of anything, and they are not being “disciplined” (even if the investigation may feel that way). Rather, the employer is investigating a potential problem, and they have to conduct the investigation to find out if the problem is real.  

Discipline: Article 7.5

At the conclusion of an investigation, Human Resources will receive a report from the investigator, and decide whether to proceed or not with imposing discipline. If Human Resources determines that corrective discipline is necessary, Article 7.5 allows the employer to do one of the following:

• A written warning on the employee’s file.

• Denial of certain rights.

• Suspension with pay.

• Suspension without pay.

• Termination with cause.

The employer normally imposes progressive discipline, where initial discipline is a milder form and, if the misbehaviour persists, corrective actions become increasingly severe. If there is a very serious infraction, however, the employer may issue suspension or termination on a first offence.

If the employer decides discipline is not warranted, the investigation concludes without discipline.

Appeal: Article 7.7

Members have a right to request the withdrawal of discipline from the University President. If the President declines (which they have always done), the member can then request an appeal.

AUFA has strong appeal language which sends disciplinary decisions to a panel of three people. AUFA choses one, AU choses the other, and the third is elected by the two panel members. The panel does not have to be internal, allowing either side to choose legal counsel for an appeal. Per our contract, the employer must pay for the panel, which may be extremely expensive for the employer.  

Members who were placed on leave during an investigation may, at the employer’s discretion, remain that way until an appeal is heard. The penalties of termination and suspension without pay are held in abeyance until the appeal is complete and a decision rendered. Appeal results that follow process properly are binding.

Analysis

Investigations have been informally referred to as “disciplines” in the past, which can create unnecessary worry for affected members. Discipline only takes place after an investigation, if the employer decides to impose one of the penalties set out in Article 7.5. Most investigations do not result in discipline. It is important to understand that if you are under investigation, you are not being punished by the employer.

AUFA has received several questions from members concerned that disciplinary cases may be disproportionately affecting racialized members. Although we do not have equity data on our membership to compare the cases to the total population, we’ve observed the following:

• 75% of Article 7 cases affected white members. This is inclusive of both investigations and disciplines.

• The remaining 25% were for members who were Black, Indigenous, or people of colour.

• Of the three cases that resulted in discipline (one was withdrawn), two of the three affected members are white.  

More reports to the membership on cases in the grievance file will be forthcoming with additional contract analysis in the coming months. 

Dave Powell

Grievance Lead

Concordia strike ends in faculty victory

Ten days ago, 89% of the Concordia University of Edmonton Faculty Association (CUEFA) voted in favour of a new collective agreement, bringing Alberta’s first post-secondary strike to a quick and positive conclusion after 11 days. This blog post outlines what we know about the settlement, and provides some analysis for AUFA members. It concludes with an update on bargaining at Lethbridge and AUFA strike preparations.

Concordia Settlement

Through a combination of solidarity within Concordia and widespread support from outside the institution, CUEFA made crucial gains in both workload and salary. It was also able to retain member ownership over intellectual property, and to avoid rollbacks to disciplinary language.

Concordia’s administration agreed to reduce annual instructional loads for teaching faculty by 25%, from 8 courses to 6 courses, thereby enabling CUEFA members to manage increasing university expectations around research and research outputs.

Like our members, CUEFA members receive annual merit increments (the CUE term is “steps”) based on satisfactory job performance reviews. These annual increments continue to operate under the new agreement. The CUEFA deal also contains two types of additional wage increases during the four years of the agreement (July 1, 2021 to June 30, 2025).

• Inflationary adjustments: Over the four years of the agreement, salaries and grids will be adjusted as follows: 0%, 0%, 0% and 1.5%.

• Salary adjustments: On both of July 1, 2021 and January 1, 2023, CUE members will receive an additional (or “bonus”) salary increment.

Together, the inflationary and salary adjustments in this agreement will improve CUEFA members’ salaries by 4.39% to 6.85% (varies by member). CUEFA members will also continue to receive their normal annual salary increments.

Analysis

The CUEFA agreement will result in immediate salary increases greater than the increase contained in the autumn AUPE government services deal (2.75% to 3.25%). The AUPE deal appears to match the current provincial mandate in PSE.

That said, as important as CUEFA’s salary gains are, they’ll still likely result in a modest net loss of CUEFA members’ purchasing power over the life of the agreement. Alberta inflation from January to December, 2021 was 4.8%. Inflation is projected at 3% in 2022 and 2.5% in 2023.

Further, while it is important to note that monetary gains in the CUEFA deal increase member salaries, the top step of the CUEFA salary grids only move up 1.5% (in the fourth year of the deal). That is to say, the top of the CUEFA grid does not move up with inflation.

What this means is that the purchasing power of the maximum salary that CUEFA members can earn will be significantly eroded by inflation. For unions (like AUFA) that have a defined-benefit pension plan, stagnant grids also reduce the value of members’ eventual pension benefits (because the maximum annual salary is lower). To avoid such outcomes, most unions seek increases that apply to both salaries and salary grids. For example, AUFA’s opening offer is a 3% increase to salaries and grids in each of the proposed three years of the deal.

Overall, CUEFA resisted what would have been devastating rollbacks, and won significant and immediate gains for its members. CUEFA’s circumstances were slightly different than those facing AUFA. For one thing, Concordia is a private institution, and therefore was not bound by secret government mandates. And for another, Concordia is rolling in cash.

Acknowledging those differences, the CUEFA strike tells us that it is possible to make big gains if a faculty association is prepared to strike. It also tells us that, if we’re not prepared to fight, we will be stuck taking rollbacks.

CUEFA applied operational, financial, and reputational pressure to Concordia to get a deal. The strike forced administrators to cancel all classes, and, consequently, lose out on tuition revenue and suffer significant reputational harm. Strike support from groups of Concordia students (although notably not from the students’ union) intensified the reputational pressure.

AUFA’s Job Action Committee is presently exploring the forms of pressure AUFA can exert on AU to reach an agreement. For example, AU’s sponsorship of the Tenth Pan-Commonwealth Forum on Open Learning in Calgary from September 14 to 16 presents several opportunities to exert reputational pressure on AU.

Mediation unsuccessful at Lethbridge

Meanwhile, the University of Lethbridge Faculty Association (ULFA) announced Monday night that formal mediation with the University of Lethbridge had concluded without a deal. The mediator declined to recommend a settlement because the parties were too far apart.

The conclusion of mediation triggers a 14-day “cooling off” period (during which time the parties can continue to bargain if they wish). At the end of the cooling off period (February 1), the union can apply to take a strike vote. Once ULFA members have authorized a strike, a strike can begin at any time with 72 hours notice.

A strong strike vote can sometimes result in renewed bargaining as the employer confronts the possibility of a strike. At Concordia, a strike vote triggered movement by the employer on workload language. Nevertheless, a strike was still necessary for the employer to agree to reasonable salary improvements and a complete withdrawal of unfair language rollbacks.

AUFA bargaining

At Wednesday’s AUFA strike prep meeting, 283 attendees (65% of members) received a brief update on bargaining. Two items of note from the meeting are:

• Vote on picketing plan: An electronic membership vote on the proposed picketing plan passed. There were 259 votes cast (~59% of the membership), with 206 in favour, 20 opposed and 33 abstentions. Discounting abstentions, 206 of 226 is 91.2% in favour. JAC will now move forward with strike planning.

• Essential Services Agreement: On January 4th, almost 4 months after AUFA applied for an essential services agreement (ESA) exemption, AU finally agreed to AUFA’s proposal. AUFA and AU are currently completing some paperwork on that matter. AUFA hopes an ESA exemption will be issued in early February. Receiving an ESA exemption allows AUFA or AU to apply for formal mediation. Formal mediation is one of the last steps before AUFA is able to proceed to a strike vote. The timing of such a vote is uncertain but the Job Action Committee is working towards a March 15 strike-readiness deadline.

Toronto-area flying picket

AUFA members in Toronto are organizing a flying picket. If you are interested in participating in such a picket during a strike or lockout, please email torontoaufa@gmail.com.

If you are an AUFA member outside of Athabasca, Edmonton, Calgary, and Toronto who is interested in organizing a local picket during a strike, please contact Bob Barnetson (barnetso@athabascau.ca).

Strike Callers Wanted

The Membership Engagement Committee is recruiting 40 AUFA members to act as callers during any upcoming work stoppage. Callers would be responsible for making weekly phone calls to other AUFA members to check in with them, pass on information, and solicit feedback.

Time spent calling would count towards a member’s weekly strike service. If you are interested in volunteering, please contact Rhiannon Rutherford (rhiannon.rutherford@athabascau.ca). Half-day caller training sessions will be held February 11 (almost full) and repeated on February 18. This workshop is open to all AUFA members and does not obligate you to participate as a caller.

Jason Foster, Chair

Bargaining Committee

Bob Barnetson, Chair

Job Action Committee

Faculty strike at Concordia enters second week

Last Thursday, 10 AUFA members joined in solidarity with striking faculty at Concordia University Edmonton (CUE), walking the picket line in blisteringly cold January weather. The CUE strike is unprecedented. It is the first post-secondary strike in Alberta’s history. This post provides some background and analysis on the strike, as well as identifying the implications for AUFA.

Background

Concordia is a private university located in Edmonton that focuses on providing high-quality, mostly undergraduate degrees. The university’s faculty association is small (~82 members) and includes faculty members, professional librarians, laboratory instructors, and field placement coordinators. Concordia also employs a large number of temporary sessional instructors who are not members of Concordia University Edmonton Faculty Association (CUEFA).

Concordia’s financial situation is strong. Its 2020/21 expenditures were $35.3 million and it generated an operating surplus of $11.5m (~33%). The previous year, its operating surplus was $7.8m. Most of the surpluses come from tuition revenue (enrollment and tuition are increasing). Overall, tuition and fees account for 64.3% of total university revenue.

At the end of fiscal year 2020/21, Concordia had $39.8m in the bank. Rather than reinvest some of that surplus to compensate chronically underpaid teaching staff, the university instead used $1.75m to buy the historic Magrath Mansion on Ada Blvd. University administration insists that the residence will serve as a campus, but it’s presently zoned as residential so it can’t be used that way. The building is also more than a century old, is architecturally unsuited for university use, and requires significant and ongoing financial resources just to maintain it.

Bargaining to Date

CUEFA has been bargaining for a new contract since early 2021. Concordia faculty have among the lowest salaries in Canada, and labour under among the heaviest teaching loads in Canada (~8 courses per year). Not surprisingly, then, fair and reasonable salary improvements, as well as a workload reduction remain top issues at bargaining.

The nexus between salary and workload is especially salient, since Concordia’s administration is demanding ever greater faculty research output in an effort to enhance the institution’s research reputation. Concordia’s goal is fine. But it can’t do that on the backs of relatively low-waged and overworked staff. The parties are also negotiating intellectual property provisions.

During bargaining, Concordia proposed new disciplinary language which appears to mean that university administrators could terminate faculty without just cause. No other faculty association in Canada has disciplinary language that gives the employer so much latitude, in part because workers know an employer will abuse such discretion. It’s also just plain unfair, and violates basic principles of any collegial workplace.

In November, CUEFA took a strike vote. Ninety-five percent of members voted and 90% of them voted in favour of a strike. Subsequently, the employer and the union were able to make some progress on faculty workload issues (but not for other members).

Concordia offered to withdraw its disciplinary proposal if CUEFA agrees to sign over its members’ intellectual property to the employer. This proposal suggests Concordia’s disciplinary language is simply an effort by the employer to generate some bargaining leverage. After the first week of the strike, Concordia withdrew this just-cause proposal.

One social media report suggests Concordia was offering:

2021/22: 0%

2022/23: 0%

2023/24: 0.5%

2024/25: 1.0%

2025/26: 1.5%

For context, inflation in Alberta in 2021 was 4.3%. Concordia declined CUEFA offers in mediation and the faculty began their strike on January 4.

Concordia not only has the capacity to pay its faculty a fair wage, but, as a private institution, it is not subject to the provincial government’s secret bargaining mandates that limit what other PSEs can agree to. Essentially, this strike is entirely the making of Concordia’s Board and president. This means that Concordia can resolve this strike at any time by returning to the bargaining table (which they have so far refused to do).

Strike Impact

One way to think about a strike is as an effort by workers to attach costs to an employer’s behaviour. If the costs are high enough, the employer will behave differently and, presumably, a mutually acceptable collective agreement will be negotiated. The CUEFA strike has (so far) generated the following costs for Concordia:

• Operational: All classes are cancelled, including those taught by non-CUEFA employees (see below).

• Financial: Concordia has deferred tuition deadlines and is at risk of losing an entire semester of tuition.

• Reputational: Concordia has received negative media stories and social media coverage that contrast its decision to buy a literal mansion with its decision to grind faculty wages. This bad press jeopardizes Concordia’s reputation as a good employer and a reliable provider of education.

It is unclear what Concordia’s strategy is beyond trying to starve out to CUEFA. University administrators may be hoping that CUEFA will call off its strike before Concordia loses the semester and a large portion of its revenue. It may also be that Concordia does not have much of a strategy; it was reportedly taken aback that faculty were prepared to strike.

Impact on Sessionals

A largely unreported aspect of the strike is that Concordia’s decision to cancel classes has left its large complement of non-unionized sessional instructors in the lurch. These instructors, highly qualified and dedicated all, are not being allowed to teach and are not being paid even though they are not on strike.

The sessionals have few options and none of them are good. They may be able to sue for wrongful dismissal, but that is expensive, slow, and likely means they will never work at Concordia again. Alternately, they can sit tight and hope for a quick resolution. Either way, they’re facing deeply unfair financial hardships.

Settlement Prospects

Bargaining resumed after the first week of the strike. Concordia reportedly dropped its demand to fire faculty for no reason at all on the first day of renewed bargaining. Issues remaining in dispute are workloads for CUEFA members other than professors, intellectual property, and salaries.

CUEFA is reporting that its wage demands could be met with approximately $350,000 in additional funding (or, if you prefer, approximately 0.18 mansions). Concordia forcing a strike and risking its reputation over 3% of its annual surplus demonstrates astoundingly bad judgment.

One impediment to a settlement may be government pressure on Concordia to not settle for more than the government’s PSE mandate (which presently appears to mirror the AUPE government settlement). Ego may also be an issue: such a settlement would be a big step-down by Concordia bosses, including its president (and mansion enthusiast) Tim Loreman.

Implications for AUFA

The CUEFA strike has a couple of lessons for AUFA:

• Pressure works, but incrementally. CUEFA made workload gains only after it took a strike vote. CUEFA forced Concordia to drop its discipline language only after striking. Essentially, each time CUEFA has upped the pressure, the employer has moved.

• You can’t bluff. You have to be prepared to carry out your threats. If you won’t strike, you are stuck accepting whatever rollbacks the employer wants to impose. And the employer won’t take you seriously next time if you get caught bluffing.

• Effective strikes are possible, even in a pandemic. CUEFA has fully disrupted Concordia’s operations and choked off Concordia’s main source of revenue.

• Solidarity helps. Flying and digital pickets help boost strikers’ morale and amplify their message. This intensifies the pressure on the employer to bargain. CUEFA has seen strong support from other unions, faculty associations, and students.

• Pressure takes time to work. It took a week of financial and reputational pressure for Concordia to drop its disciplinary demands. Having access to the CAUT strike fund allows CUEFA members the time to let the pressure work.

• Employers often seek outcomes that they don’t objectively need. Concordia is flush with cash and doesn’t need wage freezes. So why did it trigger a strike? Common reasons include the employer wanting to knock workers down a peg, undermine growing worker power, appease someone powerful, and to protect bosses’ egos. Employers can also blunder into strikes by under-estimating worker resolve.

• Employers don’t care about students (or other workers). Concordia’s decision to force a strike is harming students and sessionals. These predictable spillover effects are an unfortunate reality of work stoppages. It isn’t up to workers to prevent these harms—only the employer can do that.

• Nonetheless, students and workers are supportive of strikes. Most have more in common with the strikers than they do with the bosses. They understand the need for fair wages and working conditions. And they understand that striking is how workers achieve those goals.

AUFA will again be joining CUEFA on the picket line on Thursday afternoon, from 1-3. If you’d like to come out, please contact me at barnetso@athabascau.ca .

You can also send CUE president and mansion enthusiast Tim Loreman and email using this CAUT mailer. So far, Loreman has received nearly 1200 emails.

Bob Barnetson, Chair

Job Action Committee

Promotion committee dissolution

For the past year, AUFA has been working with three members of a promotion committee who were mistreated by AU. This blog post details the events in question with the aim of clearing these AUFA members’ reputations. 

Background 

Promotion committees are established pursuant to Article 3.6 of the collective agreement. When a professor applies for promotion, the Vice-President Academic (VPA) appoints a three-person committee to review and make a recommendation about whether or not promotion is warranted. Promotion committee work is generally viewed as confidential, with the candidate for promotion being informed only of the final outcome.   

In 2020, a promotion committee was established and began reviewing an application. In the summer of 2020, an allegation was made that a member of the promotion committee had disclosed confidential information. The VPA and the relevant dean met with the committee and announced there had been a breach of confidentiality.  

The VPA then told the members that the committee was being disestablished and an investigation into the alleged disclosure would take place (presumably conducted by Human Resources). The VPA also announced at the meeting that a new committee would be formed. The committee members responded that they would fully support a thorough investigation to find what happened and if there was any breach at all.  

The committee members were told the substance of the disclosure was that the committee was not going to recommend promotion. This was, in fact, not the committee’s recommendation. That the alleged leak was factually incorrect would suggest that the source of the leak was not a member of the committee. The committee was not informed who was accused of leaking the information. 

AU did not commence a disciplinary investigation under Article 7 of the collective agreement. Whatever investigation AU conducted did not include interviewing any of the committee members about the matter. In late November of 2020, HR told the committee members that there was a “perception” that the confidentiality of committee had been breached and a new promotion committee would be struck. This echoed what the VPA had announced earlier when he had met with the committee members to inform his decision.  

The members of the promotion committee told HR that they were concerned that their colleagues would infer they had committed some wrongdoing because the committee they had been serving on had been disbanded without explanation. They were concerned that this inference would negatively affect their reputations. They requested AU take action that would protect reputations. They again requested a thorough investigation into the matter. The HR representatives said they would need to consult their supervisors about this request. Ultimately, HR neither responded to this request nor took any action to protect the committee members’ reputations. 

Analysis 

The VPA’s decision to disband the committee and the subsequent investigation are problematic in five ways. 

1.  Article 3.6 of the collective agreement gives the VPA the authority to establish a promotion committee. Article 3.6 does not give the VPA the authority to dis-establish the committee. AUFA has informed AU that, if the VPA wishes this authority, AU can either bargain this into the collective agreement or the VPA can seek the agreement of AUFA on a case-by-case basis. In this case, AUFA views the VPA to have violate the collective agreement. 

2.  Sitting on promotion committees is a right conferred upon some AUFA members by Article 3.6. Article 7.5 identifies that denying members collective agreement rights is a form of discipline. Article 7.1 says that no member shall be subject to disciplinary action except in accordance with the procedures outlined in Article 7. Summarily dismissing members from a promotion committee constitutes a denial of rights. The VPA’s imposition of this denial without completing the investigation process required by Article 7 is a violation of the collective agreement. 

3.  The VPA’s dissolution of the committee before any meaningful investigation of the allegation had been undertaken shows a profound disregard for procedural justice. Essentially, the committee members were treated as guilty until proven innocent. Even a cursory review of the facts readily available to the VPA (the alleged leak and the committee’s actual recommendation) would have demonstrated that the alleged leak was factually incorrect. This, in turn, strongly suggests that the committee members were not the source of the leak. Surely, if a committee member was going to leak the outcome of a decision, the leak would be factually correct. 

4.  Whatever investigation AU undertook was inconsistent with the principles of natural justice. Natural justice includes the right of the accused to know the case against them and make a response before a conclusion about alleged wrongdoing is reached. The former committee members were never interviewed or given a meaningful opportunity to respond to whatever allegations were made or the evidence (if any) that implicated them. 

5.   Disbanding a committee this way casts a cloud over the reputations of the former committee members. Their colleagues will be aware that the committee that they were on was disbanded and that they are not on the new promotion committee. For this reason, AU’s unwillingness to clear the committee members’ names continues to work a hardship upon these members. Like many other AUFA members, these three members have always been sincere, doing their best to advance the academic standards and reputation of this institution. The decisions made by the VPA and the subsequent inaction are likely to demotivate and demoralize sincere AUFA members.  

Efforts by AUFA and the committee members to resolve this matter have been unsuccessful. Rather than grieving this (which would not provide a meaningful remedy at this point), the members decided simply to share their experience in the hope that their colleagues who may have questions about their integrity will find this explanation satisfactory. 

Other AUFA members with concerns about interference with the operation of promotion or tenure committees are encouraged to contact AUFA’s executive director, Richard Roach (roachr@aufa.ca). 

Bob Barnetson, member 

AUFA grievance committee 

Bargaining Update

Your bargaining team met with the employer for one day of talks on June 1. A second day was originally scheduled but had to be cancelled due to a health matter for one of the employer-side members.

Initial discussion took place on a number of articles, including the employer’s proposals on discipline and grievances and AUFA’s proposal on contracting out. No progress was made on any of those topics. We also continued talking about equity, making some progress on a shared understanding for the need to modernize our approach to equity and inclusion.

The employer still has not presented their monetary proposals and they continue to refuse to provide a timeline for when they will present them. The AUFA bargaining team continue to impress upon them the importance of showing their entire package to make progress at the table.

The most significant topic was AUFA’s proposal regarding designation. In AUFA’s initial proposal, we included language that would entrench a consultation process and require AU to get AUFA’s consent for any changes to employees’ designation. For a primer on designation, see the recent blog post on the topic.

AUFA presented our rationale for the proposal, articulating that AU’s recent actions have broken our members’ trust and that we require some resolution to the matter to rebuild it. We pointed to their decision to ignore the strong and vocal opposition of our members to the new designation policy. AUFA also reminded them that their unilateral moves to de-designate the Deans and a group of IT professionals were not only provocative but also possibly an unfair labour practice (altering employment conditions during the bargaining period).

Your bargaining team knows that AUFA members are extremely angry over the prospect of having large numbers of our members de-designated and that this is a top priority for them. Comments to a recent blog post on designation demonstrate the level of that anger. Here is a sample:

This is a chipping away: of union membership, of employee engagement, of quality of education, of spirit. I fear this may be the first step towards turning AU into the online fast-food outlet of the post-secondary world. For shame.

The de-designation issue and constant, ongoing aggressive hr/management style makes it difficult to take AU's Imagine and I-Care values plans seriously and undermines my morale as a workerbee.

Fight tooth and nail against it if we have to.

De-designation is, and always has been, a clear attempt at union busting. To the AU executive trying to push for these policies, I say, "Try me." I'm willing to strike over this, even if it's not my own position that's de-designated.

The AUFA team made sure the employer heard that message. We clearly communicated our members are willing to take action over this issue.

For its part the employer team stated they have no intentions of negotiating language on designation. Their lead spokesperson Chantel Kassongo, the external labour lawyer hired by AU to conduct negotiations, said “we will not dilute the power of the Board of Governors. This is a line that AU will not cross”. To which AUFA’s bargaining chair replied “if you don’t cross that line, there is a different kind of line you will have to cross in the future”.

At one point in the discussion, the AUFA bargaining team mused aloud that maybe the Kenney government has had a hand in setting AU’s mandate. Ms. Kassongo vehemently denied such a thing, stating “Kenney does not set our mandate!” The AUFA team finds this assertion interesting.

No real progress was made on the issue, however the AUFA bargaining team believes it was important to clearly articulate the importance of this matter for our members. One more day of bargaining is currently scheduled for June 23.

Finally, due to upcoming sabbaticals we have been required to make some changes to the AUFA bargaining team. Alexa DeGagne and Jennifer Rempel are stepping away from bargaining. Mike Voaklander and Dawn Mercer Riselli are replacing them. I would like to sincerely thank Alexa and Jennifer for their service and commitment to AUFA members. And welcome to Mike and Dawn!

Jason Foster

AUFA Bargaining Chair

98% of AUFA members reject AU’s discipline proposals

In collective bargaining, AU has proposed significant changes to the current discipline language. Earlier this week, AUFA provided details about these proposals, which would make it cheaper (and thus easier) for AU to discipline AUFA members. Specifically, if agreed to, AU’s proposal would mean: 

• An AUFA member who is suspended without pay or terminated would immediately be without income. 

• The delays inherent with the grievance process would mean this income loss could persist for years. 

• All AUFA members would bear higher costs to defend AUFA members because of AU’s proposed reallocation of costs. 

AUFA polled its members. There were 157 responses (so 37.4% of members voted). The results are: 

• 98.1% did not support AU’s proposal to make discipline effective immediately. 

• 97.5% did not support AU’s proposal to require AUFA to grieve discipline (rather than use the existing appeal process). 

Member comments about these proposals included: 

• HR and AU have demonstrated that they are completely untrustworthy. There is no way I would give them additional power in the discipline system. I would happily strike over this issue. 

• These proposals are punitive and unnecessarily harsh. It is an obvious continuation of AUs refusal to deal with AUFA in an open, constructive way. 

• This really goes to show us how much AU values their employees. 

• I don’t trust that Chairs, Deans and HR will follow due process or be fair. It’s like asking AUFA to make bullying by AU official and acceptable. 

• This shows a clear pattern of distain and disrespect for AU's professional and academic staff. When taken along with AU's attempts to weaken layoff protections and split the professional and academic staff, it's clear the institution has little respect or value for its professional and academic staff. They are more focused on creating a weakened, subservient, fearful staff that could be disciplined or laid off at any time with minimal to no notice. This tactic is abhorrent and destroys the so-called 'OneAU' rhetoric AU is so proud of repeating. 

• Mean-spirited and cynical proposal. It's unclear to me why AU seems to want so badly to undermine completely its relationship with AU workers. 

• Given the errors AU is prone to making in the discipline process, it would be frankly dangerous to allow them to make discipline effective immediately. 

• The current process seems effective and fair for everyone. I do not see any positive reason to change the process to the AU recommended process. 

• Again, this is another example of the employer wanting to enlarge their actions and limit AUFA's including the cost of appeals. It is another example of actions that do not build trust between the 2 groups and again AU executive are at a loss to explain low morale. Do not give into these changes. 

• Where, in any of these proposals, is there any rational goodwill? Why does AU have to be so negatively combative? I really hate this--it's such a stress to see how badly my employer is behaving and how little they value the service of their staff. 

• Given what I see happening I see no reason to make it easier for AU to get rid of us. I have to wonder why AU seems so intent on forcing staff to leave. Is AU being turned into a non-union contract for services shop? 

• Keep up the good work AUFA, dealing with sort of insanity has to be very draining. 

• This proposal further illustrates how the Exec of AU treats employees as if they were not a part of the same organization, striving for the same goals. It seems that the Exec is intent on establishing a hegemony over anyone and everyone that is not in the ever-growing group of senior managers in the university. 

• This is another example of the employer’s wish to create a Fordist-like factory environment where employees must do as they are told, or they will be punished or released. I suggest this is an artifact of little or no understanding of what it takes to lead and manage… . 

• Time to hire competent people in HR. 

• This is deeply concerning. Given that Supervisors/Managers/HR are just people with their own sets of biases, the disciplinary system in and of itself needs to be fair, transparent and have strict criteria. I would be concerned at any changes to policy that would create grey areas, or impact an AUFA member's income on what might end up being a spurious disciplinary claim. This would basically allow for constructive dismissal- by drawing out the grievance process past what an AUFA member's finances could bear, so that they are forced to seek employment elsewhere. 

• I am trying to figure out why the employer is being so antagonistic towards employees. None of this makes sense to me. 

• The current discipline process is biased toward the complainant who can literally fabricate a complaint against a fellow worker. … If discipline becomes effectively immediately, there is a possibility that AUFA members could lose their employment with one fabricated complaint together with a possible biased investigation process. 

• [W]hatever the process, there must be an accounting of systemic barriers experienced by marginalized or underrepresented individuals in having their complaints (against other AUFA members) taken seriously. In many institutional settings, far too many complaints alleging sexual harassment or racially-motivated aggressions are dismissed on formalities or delayed, making the work environment for the complainant intolerable. The process cannot only protect the rights of an accused member, where another AUFA member is affected by non-action. 

• Sounds like the usual ham-handed approach from the Labor Relations person. 

• This proposal as with other similar actions further demoralize staff as a whole. What is the "end goal" with all of this? If an AUFA staff member's performance is poor isn't a better approach to work with the person to improve their productivity instead of belittling them with a threat of discipline or termination? 

• Considering the above-mentioned disciplinary actions that were eventually withdrawn, I cannot support a proposal without the employer providing an explanation as to how the proposed changes can make AU a better workplace. 

• I do believe there are some circumstances where it may be appropriate for discipline to be effective immediately but, given the history you outline, I have voted no. 

• Power is already unequal. The proposed changes increases this disparity, putting employees at risk from the actions of AU including financial consequences. 

• It is such a ridiculous proposal by AU it doesn't deserve a response except to say, "No we won't accept this proposal." 

• My experiences of HR have been largely punitive (and I didn't do anything wrong other than to advocate for my position). The appeals process is long, and during that time HR does all sorts of stuff to make your work life miserable. I don't support these changes because they put members at risk from a leadership system that has historically been hostile to labour in the first place. 

• The proposed changes are unfair, even predatory, and should be opposed. This should not be a point of negotiation. 

• Totally crazy that they even think this is a good idea. 

• Another power grab. Sigh. 

• Don't we live in a system where you are innocent until proven guilty? These changes presume guilt and applies penalties before being able to defend yourself. Unbelievable. 

• Here we go again. I do not support AU's discipline proposal as it is unnecessarily punitive. I think Middle States didn't get the memo about AU leadership. 

• It seems to be a way to force a member out, as income loss will likely force the member to back down and look for another job elsewhere. 

• Forcing the grievance process is a sign that the employer has no intention of having positive working relations with employees. 

It is difficult to Imagine that AUFA’s bargaining team could get an agreement that contained these proposals ratified by the membership. It is also difficult to understand how this aggressive approach to bargaining can be reconciled with AU’s sloganeering about OneAU. 

Bob Barnetson, Chair 

Job Action Committee 

Bargaining Analysis 2: AU’s discipline proposals

This post is the second in a series of blog posts that provides more detailed analyses of both AUFA’s and AU’s proposals. This blog examines AU’s proposed changes to our discipline language. AUFA has not proposed any changes to these provisions.

Current Language

Article 7 of the current collective agreement allows AU to investigate alleged misbehaviour by AUFA members. You are entitled to AUFA representation throughout the process.

Investigations are supposed to be completed by your supervisor but, in practice, HR generally does the investigation. At the end an investigation, AU may apply discipline. Discipline can range from a letter of reprimand up to termination of employment.

Discipline is subject to an appeal process. If the discipline imposed by AU results in an interruption of AUFA member’s income (i.e., suspension without pay or termination), the discipline is held in abeyance pending the outcome of any appeal.

Appeals are decided by a three-person appeal panel comprising one person appointed by AUFA, one person appointed by AU, and a third person jointly appointed by the AUFA and AU appointees who chairs the panel. Both AU and AUFA have legal counsel present their case to the panel, which renders a binding decision.

Appeal hearings can take several months to schedule (e.g., the most recent case is 9 months from discipline to hearing) and additional time to receive a decision. These scheduling delays are often due to the unavailability of AU’s legal counsel. During this period, AU has the option of suspending a member from their duties with pay or allowing the member to continue working.

The appeal process is expensive for AU because AU must pay for the costs of the appeal panel plus the cost of lawyer to present AU’s side. AUFA covers the cost of a lawyer to represent an AUFA member. AU bearing approximately 80% of the cost of a discipline appeal creates an incentive for AU to discipline members only when discipline is clearly warranted.

AU’s Proposed Language

AU has proposed two significant changes to Article 7.

AU is proposing that all discipline would take effect immediately. This is different from current practice, wherein discipline that interrupts an AUFA member’s income is held in abeyance pending the outcome of any appeal. This change would mean the imposition of discipline would create immediate financial consequences for AUFA members.

AU is also proposing that the current appeal system would be replaced by the existing grievance process (i.e., AUFA would grieve rather than appeal). The cost of a grievance is split 50/50 between AUFA and AU, so this proposal would save AU a significant amount of money. Grievances have multiple steps before reaching the arbitration stage.

At present, it can take 18 months to schedule a grievance hearing (again typically because of the unavailability of AU’s legal counsel). This additional delay would compound any interruption of income created by AU’s first proposed change

Implications

AU’s proposed changes to Article 7 would negatively affect AUFA members in three ways:

• An AUFA member who is suspended without pay or terminated would immediately be without income.

• The delays inherent with the grievance process would mean this income loss could persist for years.

• All AUFA members would bear higher costs to defend AUFA members because of AU’s proposed reallocation of costs.

Together, these changes would make it easier and cheaper for AU to discipline AUFA members.

AU’s proposals to make it easier and cheaper to discipline AUFA members must be considered in light of AU’s past behaviour when enacting discipline. Here are some examples since 2017:

• AU ignored the discipline provisions by issuing a disciplinary letter but not to telling the member what they had done wrong. AUFA grieved this discipline as defective. AU refused to remedy this obvious defect and, after a long delay that was emotionally punishing to the member, an arbitration hearing was held. The employer arrived at the arbitration and admitted that the letter was defective. Not surprisingly, the arbitrator tossed the letter out.

• AU imposed dismissal and fired the member, somehow forgetting that dismissals are held pending the result of any appeal. AUFA got the member reinstated during the appeal process.

• AU placed a letter of a censure on a member’s file (mine, as it happens) without going through the disciplinary process. This discipline was imposed for violating a rule that did not exist. Letters of censure are specifically named as a form of discipline in Article 7. After rather ridiculously arguing that the letter was a “non-disciplinary disciplinary letter”, AU decided to withdraw the letter.

• AU went through a disciplinary hearing and told the employee they had done something bad. But, instead of putting a letter of discipline on the employee’s file, they placed a letter of expectation (i.e., required changes in performance) on the file. The letter of expectation looked a lot like a letter of discipline (including recording a number of contestable allegations) and can be used by the employer to build a termination case. But, AU argues, because it is not a disciplinary letter, the AUFA member has no way to appeal or otherwise fight the allegations in the letter of expectation.

• AU accused an AUFA member of making a threat and eventually issued a written warning. On appeal, the appeal panel ruled that the discipline was not warranted and HR had mis-understood the standard required to enact discipline.

This pattern of behaviour suggests it is not in AUFA members’ interests to make it easier for AU to enact discipline.

Your Views

AUFA’s bargaining team is interested in hearing the views of the AUFA membership about this proposal. To that end, we have created a short survey.

Bob Barnetson, Chair

Job Action Committee

AUFA wins another discipline case

In 2017, an AUFA member was accused of making a threat and eventually received a written warning. AUFA assisted the member to appeal the discipline. A hearing was held in 2019 and, last week, the appeal committee ruled the discipline was not warranted. AU must now remove the letter from the member’s file. Thanks are due to Jolene Armstrong and Nick Driedger for shepherding this file to completion. 

Discipline at AU 

Article 7 of the collective agreement outlines the process AU must follow if it wishes to discipline an AUFA member. Discipline is any form of sanction imposed upon an AUFA member, including (but not limited to) a written warning, reprimand, or censure, a denial of any benefit or right, a suspension (with or without pay), or dismissal. 

Article 7 requires an investigation conducted by the member’s supervisor. AUFA members are entitled to AUFA representation during this process. AU may suspend a member with pay during a disciplinary investigation.  

If, at the end of the investigation, AU wishes to impose discipline, it must give written notice that identifies the reason for the discipline. Discipline can be appealed.  

Discipline entailing a loss of pay (i.e., a suspension without pay or dismissal) is held in abeyance until any appeal is heard. This delay is intended to ensure members are not financially harmed without reason. 

Discipline Appeals 

A discipline appeal is heard by a three-person panel. The panel comprises one AUFA nominee, one AU nominee, and a chair chosen by agreement. Typically, all three nominees are lawyers. The panel hears testimony and reviews evidence and renders a binding decision. 

Typically, both AU and the AUFA member are represented by lawyers at the hearing. The collective agreement requires AU to pay for the costs of the panelists plus their own lawyer (so, roughly, 80% of the cost of the appeal).  

This distribution of costs is designed to disincentivize frivolous discipline. It is also intended to limit the employer’s incentive to discipline in order to bankrupt the association. 

In the most recent case, AUFA’s legal costs were in the neighbourhood of $25,000 (plus staff and volunteer time). This suggests AU’s costs were likely in the neighbourhood of $100k.  

AU’s efforts to undermine discipline language 

Over the past few years, AU has tried to undermine the discipline process in two main ways. 

First, it has tried to grind the discipline provisions in the contract down during bargaining. During the last round, AU proposed: 

• limiting what AUFA representatives could do during a disciplinary investigation, 

• that suspensions with pay and dismissals take immediate effect (instead of being held pending appeal), and 

• that the cost of the appeal panel would be split 50/50.  

These proposals would have made it easier and cheaper for AU to discipline, by shifting costs to AUFA members and AUFA. AU eventually abandoned these proposals after AUFA members rejected them by wide margins in a straw poll, the bargaining team walked away from the table, and the members began direct action efforts, such as information pickets. 

Second, AU has just ignored the discipline provisions when it suits them. For example, in one case, the employer issued a disciplinary letter but failed to provide particulars (i.e., tell the member what the discipline was in response to).  

AUFA grieved this discipline as defective. AU refused to remedy this obvious defect and eventually, after a long delay that was emotionally punishing to the member, an arbitration hearing was held. The employer arrived at the arbitration and admitted that the letter was defective. Not surprisingly, the letter was then tossed out. 

In another case, AU imposed dismissal and just fired the member (somehow forgetting that dismissals are held pending the result of any appeal). AUFA got the member reinstated during the appeal process. 

In yet another case, AU placed a letter of a censure on a member’s file (mine, as it happens) without going through the disciplinary process. Letters of censure are specifically named as a form of discipline in Article 7. After rather ridiculously arguing that the letter was a non-disciplinary disciplinary letter, AU decided to withdraw the letter.  

In yet another case, AU went through a disciplinary hearing and told the employee they had done something bad. But, instead of putting a letter of discipline on the employee’s file, they placed a letter of expectation on the file. The letter of expectation looked a lot like a letter of discipline (including recording a number of contestable allegations) and can be used by the employer to build a termination case. But, AU argues, because it is not a disciplinary letter, the AUFA member has no way to appeal or otherwise fight the allegations in the letter of expectation. This issue is subject to a grievance. 

Analysis 

Disciplining a member (including terminating them) is a powerful way for the employer to shape workers’ behaviour. Even the threat of discipline is powerful, reflecting that the powerful rarely have to exercise their power to get their way. 

AUFA’s collective agreement contains a number of procedural rights that temper AU’s otherwise unfettered ability to discipline. AU’s track record on discipline suggests that these procedural safeguards are very important for AUFA members. In short, AUFA members simply cannot trust that AU will be fair or correct during disciplinary investigations. 

Bob Barnetson, Member 

AUFA Grievance Committee 

Note: AUFA does not usually discuss grievances in public for privacy reasons. The members affected by the grievances discussed above consented to this blog post being published.