In December 2017, two Athabasca University Faculty Association (AUFA) executives met with the CUPE co-chairs and informed them that AUFA has been approached by some of our out of province tutors (OOPs) who asked AUFA to organize them into a bargaining unit. AU now employs about 50 OOPs, out of a total of about 300 tutors/academic experts, and the OOPs are unorganized.
First, a little history. In the past, CUPE 3911 attempted to organize the OOPs but Alberta legislation prohibited us from including them because they reside out of province. A related attempt was made about twelve years ago to try to organize them into new separate CUPE bargaining units based in whatever province they were in but this attempt was abandoned. The organizing drive was going well and would have resulted in about ten collective agreements. CUPE wanted to organize and certify in each province and the CUPE structure was set up to do it. As part of the organizing drive we needed to know precisely how many or who were working out of province but a ruling was made that the employer did not have to give us that information.
The legal problem that prevented us from completing the organizing drive was that our bargaining unit was and is under Alberta’s Public Service Employee Relations Act (PSERA). The wording of PSERA prevents us from pulling the OOPs tutors into our bargaining unit because the legislation is not applicable to those permanently working outside Alberta.
Here is the headnote of the case that CUPE took to the Labour Board in March 2005 (and lost):
PSERA - s. 2(1) - Employees permanently employed outside of Alberta are not included in the union's bargaining unit and are not covered by the collective agreement between the union and the employer.
The Canadian Union of Public Employees, Local 3911 (the "Union") sought a determination under the Public Service Employee Relations Act ("PSERA") that certain out of province employees including tutors and markers of Athabasca University Governing Counsel (the "Employer") were included in the Union's bargaining unit. The Union also filed an unfair labour practice complaint alleging the Employer had failed to bargain in good faith by refusing to negotiate with respect to these employees. The Employer submitted these out-of-province employees did not fall within the Union's certificate and were not covered by the collective agreement between the parties.
Held, The Board dismissed the Union's application. The employees in question were caught by section 2(1)(b) of PSERA. This section states the Act does not apply to persons who are permanently employed outside Alberta. The fact these employees are excluded from the application of PSERA by section2(1)(b) does not mean the provisions of the Labour Relations Code then apply to them.
The Alberta Labour Relations Code does not have the same restriction as PSERA. Now that AUFA is under the LRC, not PSERA, they may not be restricted by the requirement that their members be designated so they may be able to organize the OOPs. It will be curious to see if the LRB allows the OOPs to be in a provincial bargaining unit. The issue will be, “Where is the work?” Is the inclusion based on where the employer is or where the employee is? All those arguments were made to the board when we tried to get them included.
CUPE 3911 would like the OOPs included in some bargaining unit but there will be questions of the impact that has on the bargaining units. The LRB may be concerned that there are the same classification of workers working for the same employer in two different bargaining units.
Note also that CUPE 3911 continually attempts to get new tutor and AE positions assigned to competent in-province members rather than to old or new OOPs to try to minimize the OOPS numbers and the confusion this creates. CUPE has had a number of disagreements with the AU administration about their hiring policy. We suspect that at least some of AU's out of province hiring is an attempt to dilute our bargaining unit.
So where does the AUFA endeavor with the OOPs stand? They will approach the Board of Governors and then will go to the Labour Relations Board, as necessary. AU may or may not try to block this organizing and the LRB may or may not rule in favour of AUFA's application. Nothing is settled. Having all tutors and AEs organized in CUPE 3911 (or other CUPE bargaining units) is preferable, with the fallback that everyone organized in some kind of bargaining unit is better than some of us being unorganized. Being organized is especially preferable in event of a job action. As it is the OOPs who have approached AUFA and as CUPE's attempts to organize OOPs have never come to fruition we at the moment have no issue with the AUFA application. We also appreciate that AUFA has kept us informed and are proceeding in a friendly manner.
For further information, see Questions and Answers Out of Province Tutors prepared by AUFA prior to their Nov. 29 GM. This meeting gave AUFA approval to proceed with the designation and representation of out of province tutors. The report is on the AUFA website: http://aufa.ca/