Written by Bob Barnetson, Athabasca University
The decision as to who is in (and out) of a bargaining unit in labour law can be a hotly contested issue because the decision affects a union’s subsequent bargaining power. Canadian labour law (for example, s.35 of Alberta’s Labour Relations Code) typically empowers Labour Relations Boards to review whether a proposed bargaining unit is “appropriate for collective bargaining” purposes and then accept, reject or alter the unit description.
Labour Boards apply a set of general principles to determine if a unit is appropriate. For example, Alberta’s Board notes that a unit must make labour relations sense. The factors that drive this decision include community of interest, employer’s bargaining history, nature of the employer’s organization, the viability of the proposed unit, avoiding fragmentation of bargaining structure, and (sometimes) the agreement of the parties. Usually unions are provided some leeway in deciding the unit of employees they want to represent, subject to overriding concerns about a proposed unit causing serious labour problems for the employer.
Bargaining units can be established in other ways. For example, many public-sector units are established or have the bargaining unit description set by statute. In Alberta, the unions that represent post-secondary faculty were created by the Post-Secondary Learning Act (and predecessor legislation). This peculiar piece of legislation delegated to the Board of Governors of each post-secondary institution (i.e., to the employer) the authority to determine which employees or categories of employees were considered academic staff and therefore entitled to be in a bargaining unit represented by a union.
Allowing an employer to designate which employees are members of a union creates the obvious risk that an employer will use this power to advance its labour relations interests. For example, when I worked in the college sector in the late 1990s, college boards would sometimes respond to bargaining demands for better terms for (as an example) librarians with the threat, “if you pursue this demand, we’ll just de-designate the librarians from your unit.”
While this tactic was obviously unfair, the only constraint upon the behaviour of post-secondary Boards was to meaningfully consult before they de-designated. In the mid-1990s, the Lakeland College Faculty Association challenged the de-designation of a librarian. In 1998, the Alberta Court of Appeal ruled that the absence of objective criteria upon which to base a de-designation meant that the college’s consultation was inadequate.
In 2017, Alberta’s NDP government altered post-secondary labour relations. In addition to introducing strike-lockout, the government amended the Labour Relations Code to allow designation decisions to be appealed to the Labour Relations Board. Post-secondary Boards of Governors retained their power to designate.
The new provisions in the Labour Relations Code (s.58.6(2)) outlined some factors that the Labour Board may take into account where hearing an application about designation. These include the history of and policies about designation, the results of any consultation between the employer and union(s), the potential for managerial conflict in the context of collegial governance, arrangements for the transition of affected employees, the views of other affected unions, and any other factors the Labour Board considers relevant.
The history of designation meant that the membership of faculty associations vary significantly across Alberta. Teaching staff and librarians are generally included in the association. The practice around administrators (e.g., deans, departments chairs), administrative professional staff, and other professionals (e.g., IT and course production staff) varies. The new provisions allowed faculty associations to challenge long-standing issues.
For example, in February of 2019, the Labour Board issued a decision regarding the inclusion of departmental chairs in the faculty association of Northern Lakes College. The Labour Board declined to rule on the application, citing a lack of consultation between the parties prior to the faculty association applying to the Labour Board. The Labour Board subsequently provided some guidance about how it will handle such applications going forward. Drawing upon the 1998 Lakeland decision, the Labour Board noted that post-secondary Boards of Governors should establish objective criteria upon which to base designation (and de-designation) decisions.
In December of 2019, Athabasca University (AU) presented its faculty association with a new Designation as Academic Policy (DAP). The new policy contained a very specific list of job duties required for an employee to be considered an “academic”. The proposed policy also named a number of new exclusions that included deans, associate deans, managers, and systems analyst (a very broad term, potentially encompassing AU’s entire IT department).
The effect of the employer’s proposed policy appeared to exclude approximately two-thirds of the faculty association’s current membership, leaving only professors with research duties in the faculty association. Through nine months of consultation, the university refused to confirm (or even discuss) this estimate (although, periodically, university representatives would slip up and acknowledge some of the exclusions). One of the knock-on effects of de-designation appears to be that de-designated employees will no longer being able to participate in the pension plan, another implication of the policy that Athabasca University refused to discuss.
The only rationale advanced by Athabasca University for the policy was compliance with the Labour Board’s requirement for objective criteria. AU already had, however, a set of objective criteria in its 1983 policy. Under the 1983 policy, all professors and professional staff (e.g., administrators, editors, IT staff, librarians) were in the faculty association except for a small number of staff who conducted or had access to information about collective bargaining.
The new policy proposal appears to be a part of a lengthy union-rejection strategy by the university that has included:
- Refusing to respond to communications about violations of the contract.
- Missing timelines around grievance and appeal processes.
- Forcing the union off campus due to a “lack of space” ( the former union office are now a barely used storage room).
- Forcing simple issues to grievance hearings.
- Failing to respond to a notice to bargain and violating the statutory freeze period.
- Advancing bargaining proposals (e.g., company doctors) that lead to impasse before walking away from virtually all of them.
- Delaying the negotiation of an essential services agreement.
- Refusing to continue a long-standing workload buyout for the union president.
- No longer allowing union staff to coat-tail on the union’s employer-administered benefit plan.
Union members applied significant pressure to the employer over the policy (e.g., petitions, letters, a march on the boss, social media posts) that prevented the immediate de-designation of IT staff, deans, associate deans and managers. In September of 2020, Athabasca’s Board of Governors approved a slightly amended DAP. This policy still allows the university to begin de-designating these union members at any time. The faculty association will appeal any dedesignations at the Labour Board, having secured a funding commitment from the Canadian Association of University Teachers.
The faculty association is also increasing the reputational and financial cost of de-designation to the university. The faculty association has escalated member action to include public picketing of university events as well as gathering boycott pledges from other faculty associations. Athabasca is heavily reliant upon tuition from visiting students. If Athabasca de-designates faculty association members, faculty across the country are prepared to no longer send visiting students to Athabasca University or, in some cases, recognize transfer credit from Athabasca.
The ongoing fight at Athabasca highlights the perils of allowing the employer to wear two hats. Athabasca appears to be using its power to decide who is in the bargaining unit to advance its labour-relations interests. This conflict of interest was pointed out to Alberta’s former New Democratic government in 2017 when it amended the law. And avoiding such conflicts is one of the reasons that Labour Boards are typically given the responsibility to determine who is in and out of a bargaining unit.
Bob Barnetson, “Athabasca University Threatens to Exploit Peculiar Alberta Labour Law in Bargaining Dispute” (September 22 2020): https://lawofwork.ca/?p=13011