Friday, April 21, 2017

Labour & Pop Culture: Streets of Philadelphia

This week’s installment of Labour & Pop Culture is “Streets of Philadelphia” by Bruce Springsteen. The song is from the soundtrack to the move Philadelphia, which was the first mainstream film to address AIDS.

The film centres on a gay attorney (Andrew Beckett, based on the real life story of Geoffrey Bower) who is fired from his firm, allegedly for incompetence. Really, he has been fired because of his disease. Beckett wins in the end, just in time to die.

I picked this song because next Friday (April 28th) is the National Day of Mourning for workers killed and injured at work. Ceremonies will be held in Edmonton in Borden Park at noon.

While we most often associate workplace injuries and fatalities with acute injury events (falls, crushes, explosions, etc.) or motor vehicle accidents, occupational disease is a significant and often unrecognized source of injury.

Workers with occupational diseases often have great difficulty gaining compensation of their injuries (diseases are complex, having long latency periods and murky causality). Many workers with occupational diseases also face discrimination, much like Tom Hanks’ character in Philadelphia.

Social isolation and depression often ensues. Springsteen captures the psychological effect of this well:
I was bruised and battered, I couldn't tell what I felt.
I was unrecognizable to myself.
I heard the voices of friends, vanished and gone

I was bruised and battered, I couldn't tell what I felt.
I was unrecognizable to myself.
Saw my reflection in a window and didn't know my own face.
Oh brother are you gonna leave me wastin' away
On the streets of Philadelphia.

I walked the avenue, 'til my legs felt like stone,
I heard the voices of friends, vanished and gone,
At night I could hear the blood in my veins,
It was just as black and whispering as the rain,
On the streets of Philadelphia.

Ain't no angel gonna greet me.
It's just you and I my friend.
And my clothes don't fit me no more,
I walked a thousand miles
Just to slip this skin.

Night has fallen, I'm lyin' awake,
I can feel myself fading away,
So receive me brother with your faithless kiss,
Or will we leave each other alone like this
On the streets of Philadelphia.

-- Bob Barnetson

Tuesday, April 18, 2017

Should Alberta protected concerted activity?

Today is the deadline for submissions regarding Alberta's Labour Relations Code review. Much of the chatter to date has focused on card-check certification, double-breasting, and first-contract arbitration.

I've appended below my submission. I chose to focus on the absence of concerted activity protections in Alberta's Labour Relations Code. The argument that I've advanced is that Alberta workers currently face profound impediments to exercising their associational rights and, give the direction of the Supreme Court's recent decisions on freedom of association, this creates an obligation on Alberta to statutorily protect concerted activity.

-- Bob Barnetson

Dear Mr. Sims,

Thank you for the opportunity to make a submission regarding changes to the Labour Relations Code.

I would like to propose remedying the lack protection in the Labour Relations Code for concerted activity. Presently, workers who exercise their Section 2(d) associational rights for any legitimate labour-relations purposes other than organizing or administering a trade union have no protection against or recourse in the case of employer retaliation.

By contrast, Section 7 of the US National Labour Relations Act (NLRA) protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection”. Examples of such activity include the recent Fight for 15 campaigns, efforts to improve working conditions in non-unionized workplaces, collective whistleblowing activity, and work refusals that fall outside of the ambit of health and safety legislation.

This gap in Alberta’s Labour Relations Code fundamentally undermines workers’ ability to meaningfully exercise their associational rights. This, in turn, obligates Alberta to take affirmative action to facilitate the exercise of these rights.

In support of this assertion, I would point to the recent trend in Supreme Court of Canada decisions is to view associational rights in increasingly expansive terms. As recently noted by Ritu Khullar and Vanessa Cosco (2016), in Mounted Police, the Court found that “a key purpose of section 2(d) is to protect the ability of individuals to join with others to meet, on more equal terms, the power and strength of other groups or entities” (p. 30).

This view has been informed by Chief Justice Dickson’s 1987 dissent in Alberta Reference, wherein he asserted the
[87] Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association …has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict. … 
[88] What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.
Note that Chief Justice Dickson’s focus was on the relationship between marginalized individuals and the powerful (rather than simply the relationship between individuals and the state). The Court, in Mounted Police, adopted this focus when it stated:

[66] In summary, s. 2(d), viewed purposively, protects three classes of activities: … (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.

In Dunmore, the Court noted that the state can be obligated to take affirmative action in order to protect or facilitate the exercise of fundamental freedoms. In Fraser, the Court stated that circumstances where it is impossible to meaningfully exercise a freedom would be a violation of the Charter.

I would put to you that, in contemporary Alberta, non-unionized employees are in a situation where, if they exercise their associational rights, their employer can terminate or otherwise detrimentally manipulate (through scheduling changes and temporary layoffs) their employment.

This dynamic places non-unionized employees in a position where they cannot collectively and meaningfully exercise their associational rights except by forming or joining a union and certifying their workplace. Given that the unionization rate in Alberta is approximately 20% (the lowest in Canada), unionization is clearly not a realistic option for most workers.

Based on Dunmore, the absence of a meaningful way for workers to exercise their associational rights creates an obligation on Alberta to take affirmative action to facilitate this exercise. Introducing concerted activity protections to the Labour Relations Code would be an appropriate way to facilitate and protect the exercise of non-unionized workers’ associational rights.

Thank you for the opportunity to make this submission.

Dr. Bob Barnetson
Professor, Labour Relations
Athabasca University

Friday, April 14, 2017

Labour & Pop Culture: Earn Enough for Us

This week’s installment of Labour & Pop Culture is “Earn Enough for Us” by XTC. It was issued in 1986 and reflects the economic anxiety many Britons felt as a result of Margaret Thatcher’s austerity policies.

The singer worries about making enough money to make ends meet, particularly given that his partner is pregnant. The solution he proposes is to get an additional job while continuing to put up with a bad boss at his current one.

The song has just a touch a despair:
Just because we're on the bottom of the ladder
We shouldn't be sadder
Than others like us
Who have goals for the betterment of life
Here we see the entrenched class system where a better life feels beyond reach. There is no video for this song but you can listen to it here. In its place, I give you Today in HR: Succession Planning:

I've been praying all the week through
At home, at work and on the bus
I've been praying I can keep you
And to earn enough for us

I can take humiliation
And hurtful comments from the boss
I'm just praying by the weekend
I can earn enough for us

Found a house that won't repair itself
With it's windows cracking
And a roof held together with holes

Just because we're on the bottom of the ladder
We shouldn't be sadder
Than others like us
Who have goals for the betterment of life

Glad that you want to be my wife, but honest

I've been praying all the week through
At home at work and on the bus
I've been praying I can keep you
And to earn enough for us

So you're saying that we're going to be three
Now, a father's what I'll be
Don't get me wrong, I'm so proud
But the belt's already tight

I'll get another job at night, but honest
I can take humiliation
And hurtful comments from the boss
I'm just praying by the weekend

I can earn enough for us
Just because we're at the bottom of the ladder
We shouldn't be sadder
Than others like us

Who have goals for the betterment of life
Glad that you want to be my wife, but honest

I can take humiliation
And hurtful comments from the boss

I'm just praying by the weekend
I can earn enough for us
I can earn enough for us

--Bob Barnetson

Saturday, April 8, 2017

Alberta rushes profs towards strike-lockout

Last week, Alberta's Minister of Advanced Education (Marlin Schmidt, right) introduced changes to labour laws that affect faculty, grad students, and post-docs in Alberta’s colleges, universities, and technical institutes. Previously, labour relations were conducted under the ambit of the Post-Secondary Learning Act, which contains an incomplete set of labour laws.

Bill 7 mostly moves PSE labour relations under the ambit of the Labour Relations Code. This broadly mirrors the situation in other provinces and is a good policy change. The two provisions of Bill 7 that may warrant amendment have to do with transition periods.

Bill 7 gives academics the right to choose a different (or no) union—just like every other worker in Canada. But Bill 7 contains a five-year transition period (to 2022) during which workers cannot exercise these rights. A period of this duration makes little sense because it precludes academics who have legitimate concerns about the operation of their association from exercising any choice for five years.

The prospect of a union losing its bargaining-agent status is an important check-and-balance in unionized workplaces. It (along with the duty of fair representation) pressures unions to do their best to represent their memberships' interests. This is more than a theoretical argument. As I wrote a few weeks ago, there are a number of members of the U of A graduate students association who want to have the opportunity to select a different bargaining agent.

The other transition period issue in Bill 7 has to do with the shift from resolving bargaining impasse by arbitration to resolving it via strike-lockout. I see this change as a good one and in keeping with the Supreme Court’s SFL decision of 2015. My concerns are about the lack of a transition period.

Assuming Bill 7 is passed in its current form, all existing arbitrations will be allowed to continue but any bargaining impasse that occurs after April 6, 2017 will be resolved through strike-lockout. The absence of a transition period to strike-lockout (which was promised to faculty associations) leaves 7 (I think) faculty associations that are currently in bargaining in a bad position.

They are in a bad position because, when you bargain, you base your bargaining strategy on your BATNA (best alternative to a negotiated agreement). Under arbitration, the BATNA is basically the salary settlements at comparator institution. If the employer won’t come close to that, you have reached impasse and off you go to arbitration.

Under strike-lockout, the BATNA is whatever you think you can force out of the employer by withdrawing your labour. This might be more or less than comparator settlements. The ability of unions to withdraw their labour depends (in part) on their financial resources (e.g., strike fund) and membership committee to the bargaining position.

Having the dispute-resolution process change in the middle of bargaining is problematic because these unions have no strike funds and haven’t been building solidarity around their position. Maybe this is just tough beans but the associations took action based on assurances they had (or felt they had) from the government.

Consequently, an aggressive PSE employer can now impose a short lockout on the workers, bring them back, and then impose the employers’ last contract. (Procedurally it is a bit more complicated but that is the crux of the issue. Whether employers will be aggressive is an open question—my experience with my employer is that they would absolutely take advantage of this opening.)

Whether a union could effectively strike (which is the countermove to the 24-hour lockout) is also unclear. I suspect many faculty associations would struggle to do so. (To be fair, faculty association may be able to remedy the “strike-fund” problem by joining the CAUT strike fund (assuming the normal six-month waiting period is waived) or by securing a loan from CAUT or a bank.)

This means that the lack of a transition period is the government handing the employers a pretty big lever. I can’t really fathom why there was no transition period. The issue was raised in consultations and the government pretty clearly gave assurances to the unions that they wouldn’t get thrown to the wolves like this.

The most charitable explanation for this decision is the government decided that complying with the Supreme Court’s direction was the most important thing to do. The only support for this inference that I can find is Schmidt's brief statement in the House Thursday when he introduced the Bill:
Our government is committed to fair legislation that makes life better for hard-working Albertans, and we are committed to complying with the Supreme Court of Canada decision guaranteeing Canadian workers the right to strike. (p.552)
That explanation stands in contrast to the more widely accepted explanation: this is an effort by the government to help PSE employers grind down labour costs (which helps the government meet its fiscal targets and insulates it from criticism that it is coddling organized labour). Absent any government statement on this issue, I'm inclined towards the latter explanation.

The official response from faculty associations has been pretty professional (for example). The private responses I have heard from around the province are basically a very, very angry “what the fuck?” (often in those exact words). Many unions are feeling betrayed.

The answer to the “so what?” question starts in Calgary. The University of Calgary’s faculty association opposed these changes in the law. I think that was an error, but whatever. They are presently in bargaining with their employer. If, in the end, the U of C faculty feel they are forced to accept a bad deal (because they can’t handle a strike), that could translate into lost votes for the NDs in Calgary in 2019. The NDs need Calgary seats to form government again. And there are six other institutions in the same boat.

Now maybe the political calculus here is that (1) “that's two years from now”, (2) “who else are academics going to vote for—book burning so-cons?”, and (3) “we’re not going to win the rural seats where most of these colleges are anyhow”. If that is the calculation, I have to wonder if the political risk is really worth not providing a year or two of time to allow for an orderly transition? A year-long transition is no big deal--no one is going to file a constitutional challenge over it.

I’m feeling pretty fortunately my association isn’t caught out. But that was dumb luck. We have been active in putting together a strike fund, but we’re not ready. “Fortunately”, my employer completely pooched bargaining in February 2016 and, subsequently, stalled the arbitration process, so we’re still waiting to go to hearing. But we could easily have been in a bad spot.

To further complicate things, the seven institutions now bargaining under strike-lockout will need to negotiate essential services agreements with their employers (unless both sides decide to voluntarily refer impasse to interest arbitration—a case-by-case decision). Many small associations have limited labour-relations capacity and the situation has been made worse for colleges because of the disintegration of the Alberta Colleges-Institutes Faculty Association.

I wonder if a small amendment—reducing (or eliminating) the bar on raids and revocations and delaying the imposition of strike-lockout by a year or two—would be appropriate. This better protects the basic rights of workers to choose their bargaining agent while preventing employers from hammer the workers in this round of bargaining?

-- Bob Barnetson

Friday, April 7, 2017

Labour & Pop Culture: Dreamland

This week’s installment of Labour & Pop Culture looks at the Australian comedy “Dreamland” (also called “Utopia”) available on Netflix.

Dreamland follows the travails of the bureaucrats at the fictional Nation Building Authority as they try to develop infrastructure projects, cope with their own shortcomings, and manage political interference and fads.

If you have ever worked in the public sector, you’ll recognize most of the characters (“hey, that’s Mark!" or "Oh no, here comes the Minister's chief of staff!") and situations ("OMG, they're setting up a social media taskforce!" or "Oh no, the boss just came back from a conference with a great idea!”). These include:
  • Episode 3: The staff are directed to re-examine (one more time) a white-elephant rail project while undergoing a safety audit.
  • Episode: 4: A new and marginal employee manages to finagle a promotion by gaming the performance assessment process with meaningless lingo and filing a grievance.
  • Episode 12: The staff must put “meat on the bones” of a terrible, off-the-cuff policy idea while also coping with a Freedom of Information request.
  • Episode 15: Firing an incompetent employee takes a terrible, terrible turn plus a new coffee machine disrupts the office.
Episode 12

Episode 15

The crux of the humour is the effort by the two managers (Nat and Tony) to do their jobs while surrounded by easily distracted staffers and meddling political and communications operatives. Having survived a couple of years of government employment, this show nails the hard work and absurdity of it.

-- Bob Barnetson

Thursday, April 6, 2017

PSE labour relations: ACIFA explodes

A few weeks ago, I wrote about organizing efforts that are underway among University of Alberta Graduate students. These efforts reflect some of the instability that has emerged in (normally sleepy) academic labour relations in Alberta as the government prepares to extend the right to strike (and hopefully other labour rights) to academics--perhaps even this week!

There has been an interesting development in the college sector. The Alberta Colleges-Institutes Faculty Association is a provincial association that provided government and labour relations services to 15 faculty associations in Alberta. To the best of my recollection, the association dates back into the 1980s (but I may be wrong--that was a long time ago!) and basically acts as a labour central.

ACIFA has always had certain organizational tensions. Its member associations are quite diverse in size, scope, and ambitions. The associations include Alberta’s two huge technical institutes, two ambitious undergraduate universities, the art college, and a collection of other colleges (with a mix of university transfer, adult upgrading, and vocation programming, including agriculture). Add in a leadership cadre that, at times, has been uneven and you get some interesting politics.

It appears there was a recent kerfuffle in ACIFA. While the details are a bit sketchy, it appears that a number of member associations sought a change in ACIFA’s leadership. My source suggests a motion to this effect was thwarted procedurally (someone left a meeting to bring it below quorum).

The upshot is that the staff appear to have resigned, several (I hear half) of the member associations have indicated their intention to depart, and numerous executive members have resigned. I’m happy to correct that information if new facts emerge.

For the average college faculty member, this means little (their connection is with their local association). Provincially, the implications are more interesting:

1. Important labour law and funding reviews are afoot. How do associations that have left ACIFA influence government policy? And how does government get a coherent faculty resaponse from a splintered group?

2. Individual college faculty association have uneven levels of internal capacity to negotiate contracts and run grievances. How will low-capacity associations respond to the loss of key ACIFA staff members? If they can simply contract with former ACIFA staff privately for labour-relations services, an important (and perhaps the central) value of ACIFA membership disappears.

3. Speaking of staying, will the remaining ACIFA executive stay (and could they get re-elected) since the organization imploded under their leadership? And will other member associations drift away now that ACIFA has lost its staff expertise? Why would any association stay in a rump organization?

4. Individual faculty associations will soon face strike-lockout in collective bargaining. A sensible employer tactic would be to identify the weakest association(s) and try to force concessions to set a pattern. Absent a provincial association through which to share information and resources, small college faculty associations will be particularly vulnerable to this kind of pressure.

5(a). Vacuums tend to be filled. Will more former-ACIFA associations look to take out full membership in the national Canadian Association of University Teachers? Will some associations approach the provincial university body (the Confederation of Alberta Faculty Associations) about joining? And will CAFA want to let them in, given the traditionally different mandates of the research intensive universities and past squabbles?

5(b) Or, is this an opportunity for mainstream labour unions, such as the Alberta Union of Provincial Employees, to pick up some additional members? Whether that would be through raiding or some kind of affiliation might depend on what the new labour laws look like in PSE. Wall-to-wall coverage of support and academic employees at an institution would give AUPE significant bargaining power.]

All told, these are among the most interesting times I can recall in faculty labour politics in Alberta since the Klein cuts in 1994.

-- Bob Barnetson

Tuesday, April 4, 2017

Options for labour law reform in Alberta

Alberta has announced a review of it Employment Standards Code and Labour Relations Code. There is a survey on Employment Standards issues available online which foreshadows a number of possible changes.

There is much less information available about possible changes to the Labour Relations Code, although the mandate letter sent to Andy Sims (who has been retained as a consultant) is an interesting read. It was last significantly amended in the late 1980s and creates structural barriers that impede workers from freely exercising their associational rights.

For example, Alberta’s unionization rate is approximately 22%. The national average is 30%. Interestingly, approximately 33% of Canadian workers who are not in a union say they would like to be and, overall, 52% of all Canadian workers would like to be or remain in a union.

Amendment of the Labour Relations Code will likely address three key issues: card-check certification, remedial certification, and first-contract arbitration. A fourth option to consider is enshrining protection for concerted activity in the Code.

1. Card-Check Certification

To unionize a workplace in Alberta, a union must demonstrate that at least 40% of the workers want to join the union and then, about 10 days later, win a certification vote held by the Labour Relations Board. The 10-day delay between application and vote gives employers the opportunity to pressurize workers to vote against the union.

An alternative to certification votes is the card-check model. Under the card-check model, if the union shows the Labour Relations Board evidence that a certain percentage of workers are union members (e.g., 65%), the Board then automatically certifies the union. This arrangement eliminates the opportunity for the employer to illegally interfere with workers’ right to choose. Unions that cannot demonstrate support that meets the card-check threshold can still achieve certification through a certification vote.

Up until 1977, all Canadian jurisdictions used card-check certification. Presently, only Quebec, Prince Edward Island, and Ontario’s construction sector do so. The evidence in Canada is clear: card-check certification provisions result in more certification drives by unions and more successful certification applications.

The most robust analysis is of BC’s move from card-check to mandatory votes in 1984, which saw a 50% reduction in certification drives and a 19% reduction is successful private-sector drives. A return to card check certification in 1993 saw the number of organizing drives increase, as well as a 19% increase is successful private-sector unionization drives.

The absence of any effect of these changes on public sector unionization (where employers are less likely to oppose unionization) suggests that requiring mandatory votes enabled employers who opposed unionization to thwart drives by giving the employer notice of the drive and time to act against it. Other studies have found similar card-check effects.

Returning Alberta to card-check certification will increase both the amount of organizing and the success rate of organizing drives. Employers often argue that mandatory secret-ballot votes are essential to democratic processes. Mandatory secret ballot votes are essential when one is electing a government, which has the power over one’s liberty and life. The argument that a vote is necessary when choosing a bargaining agent is less compelling, especially given that mandatory votes help employers interfere with a decision that properly belongs to the workers.

2. Remedial Certification

Currently, if an Alberta employer meddled in a union certification drive the Labour Relations Board has no effective remedy to issue. The best the Labour Board can do is conduct a second vote. But, if the employer has already poisoned the well, taking a second drink is unlikely to improve matters for the workers.

The Labour Relations Code could easily be amended to allow the Labour Relations Board to grant automatic certification in cases of significant employer interference in organizing campaigns. Such remedial certification power is necessary because up to 80% of employers overtly and actively resist union certification efforts. This employer interference profoundly impacts workers’ ability to exercise their associational rights free from undue employer influence.

For example, employers engaging in unfair labour practices – a subset of all forms of employer resistance to unionization – were found to reduce the chance of certification by 14%, to increase the likelihood of encountering serious bargaining difficulties by up to 35%, and to increase the likelihood of early decertification by up to 57%.

The public policy purpose of remedial certification is to eliminate the incentive for the employer to meddle in union organizing drives. The evidence from Ontario is that existence of the remedial certification provisions is often enough to dissuade employers from committing unfair labour practices.

3. First-Contract Arbitration

The government of Alberta could also enhance workers’ ability to exercise their associational rights by providing for first-contract arbitration (FCA). Under FCA, if collective bargaining reaches an impasse when the union and employer are negotiating a first collective agreement, either side can apply for resolution via arbitration, rather than being forced into a strike and/or lockout.

The need for FCA reflects that some employers will stonewall the union during the first round of bargaining in the hope of breaking the union. The purpose of collective bargaining is to reach a mutually agreeable collective agreement, not to allow the employer an opportunity to re-fight the certification campaign. FCA addresses this inappropriate behaviour by eliminating an employer’s incentive to stonewall.

First-contract arbitration is available in most Canadian jurisdictions. Experience (particularly in BC, Ontario and Quebec) suggests the availability of FCA reduces employers’ incentive to stonewall unions to such a degree that FCA is rarely invoked.

Concerted Activity

An omission in Canadian legislation is protection for concerted activity. Concerted activity, as set out in Section 7 of the US National Labour Relations Act (NLRA) provides protection to persons engaged in “concerted activity” for the purpose of “mutual aid or protection”.

Non-unionized workers have used such protections to pressure employers for higher wages (e.g., the recent Fight for 15) or better working conditions. Workers have also used concerted activity protections as a proxy for the right to refuse unsafe work (collectively) and to protect whistleblowing activity.

These NLRA protections are broader than those usually accorded to workers in Canadian labour laws. For example, the protections set out in Sections 21, 148 and 149 of Alberta’s Labour Relations Code are focused mostly on the formation of or participation in a union. Other associational activity is not protected.

Inserting concerted activity protections in Alberta's Code would provide an additional level of protection to workers exercising their freedom of association in ways other than simply organizing unions. Concerted activity protections may also go some distance towards ensuring that Alberta's labour laws are compliant with future interpretations (and extensions) of the freedom to association by the SCC.

Specifically, a number of scholars are questioning whether Canadian legislation in the Wagner tradition (which practically limits the exercise of associational right to workplaces where a majority of workers favour unionization) will continued to be viewed as constitutional since it precludes so many workers from meaningfully exercising their associational rights.

-- Bob Barnetson