Bargaining update for July 25: ESA, Collective Agreement bargaining, Labour Board applications, and changes in the bargaining team

Here are some updates on various aspects of the 2018 negotiations.

Collective Bargaining to resume in September after July 25th meeting

The Collective Bargaining teams for the Board of Governors and ULFA met on July 25th for the last bargaining session of the Summer (holiday schedules made it impossible to find time in August).

During the session, the two sides exchanged the following articles (you can follow the progress of negotiated articles here):

ULFA Administration
9 (Personal Files)
33 (Gradual Retirement and Reduced Load Status)
1 (Preamble and Objectives)
3 (Amendments)
24 (Appeals of Recommendations by STP Committees)
“Part I” and “Part IV” (Faculty Members and Sessional Instructors)

At this point in the negotiations, most of the “low hanging fruit” has been dealt with and the two sides are now beginning to deal with more difficult issues. Resolving such questions requires considerable discussion and creativity as negotiators attempt to find ways of reaching agreement starting from disparate opening positions.

Wednesday’s negotiations were characteristic of this: while the sides seem close on Articles 1, 9, and 24, they have discovered areas of potentially more substantive disagreement in 3 and 33. In each case, considerable attention was devoted to probing the areas of difference and attempting to understand the core issues on each side.

“Part I” and “Part IV” are part of a new proposal from the Board to consolidate all information regarding personnel processes (e.g. hiring, promotion, PARs, etc.) for different categories of employees. “Part I” is the consolidation for members of the Professoriate, “Part IV” the consolidation for Sessionals. The Administration has previously presented a “Part III” for Academic Assistants/Lecturers. These parts represent a considerable reorganisation of the Handbook and will require careful study when negotiations resume in September.

As in previous sessions, the two sides worked productively together and negotiations continue to progress well.

“Bridging” Labour Board application

The Board of Governors and ULFA are currently involved in a case before the Labour Board regarding the applicability of “bridging” provisions in the Labour Relations Code to Cost of Living Adjustment (COLA) increases. You can read more about this here,  here, here, and here.

Under the “bridging” provisions of Section 130(1) of the Code, all articles of the collective agreement that were in effect when notice to bargain was given remain in effect until (1) negotiations are concluded; (2) negotiations are interrupted by job action; or (3) two years have passed without ratification of a new contract. A more detailed discussion of the background to this issue can be found here.

ULFA’s position is that bridging provisions apply to the application of COLA on July 1st (Schedule A.02). The Board of Governors has taken the position that bridging does not apply to COLA. In response, ULFA has filed an Unfair Labour Practice complaint with the Alberta Labour Relations Board. In response, the Board of Governors asked the Labour Relations Board to dismiss ULFA’s complaint, arguing that the question is a matter of interpretation of the Handbook rather than the applicability of the Code to the Handbook. In the Board of Governors view, the correct avenue for resolving this dispute is via the provisions of Article 1 (Interpretation) in the Faculty Handbook). ULFA disagrees with this position, arguing that the question is one of the applicability of the Code to the Handbook rather than the interpretation of the Handbook. ULFA also argues that Article 1 processes are an inappropriate mechanism for resolving this dispute.

On July 4th, the parties agreed to argue the Board of Governors application via written submissions. The Board of Governors submitted their request on July 18th. ULFA was given one week to reply, and submitted its response on July 25th. The Board of Governors now has until August 1st to respond to ULFA’s submission, at which point the Labour Relations Board will consider the case and reach a determination. If the Labour Relations Board decides in favour of the University, resolution of this case likely will be deferred to the processes outlined in Article 1 of the 2016 Handbook; if it decides in ULFA’s favour, the next step likely will be a hearing on the merits of ULFA’s case before the Board. This hearing will be scheduled sometime in September.

Essential Services Agreement (ESA) negotiations and Labour Board Application

Essential Services Agreements (ESAs) cover the provision of Essential Services in the event of job action (i.e. a lockout or strike). Under the Labour Relations Code, management and unions in the Post Secondary sector are required to negotiate an ESA unless an exemption is requested and granted by the Commissioner. Exemptions may be requested on the ground either that no essential services are performed by the employees in question or that all essential services can be performed by other employees in the event of job action. Under the Code, an Essential Service is a service that is required to preserve human health and safety or the maintenance of law and order. We have discussed ESAs several times over the last year, including here, here, here, here, and here.

On June 26th, the Board of Governors submitted a unilateral request for exemption from the ESA requirement with the Labour Relations Board on the grounds that members of the Academic Staff perform no essential services. This claim conflicts with ULFA’s research on the matter, which suggests that several classes of employees within the Academic Staff perform such services on a periodic or emergent basis.

The Commissioner for Essential Services met with management and the union on July 16 for a case management call. At that call the two sides were encouraged to begin negotiations and the Board agreed to temporarily pause further action on the request for exemption while the two sides attempted to find dates for negotiation. A second case management call was scheduled for July 26th but has since been canceled due to the fact that the parties are coming back to the table to bargain the ESA. The request for exemption has been paused so that the parties can work toward agreement at the table.

The two sides are in the process of scheduling dates for ESA negotiations to start by end of August.

Changes in the ULFA bargaining team

Finally, there has also been a change in the ULFA bargaining team. Dr. Paul Hayes has led the Economic Benefits side of our bargaining since 2017. He leaves for Japan on a teaching exchange and is stepping down from negotiations as a result. Dr. Rumi Graham has been appointed to the bargaining team as Dr. Haye’s replacement. She is a welcome addition to the team in this official capacity, though she has been involved as an observer in this round of negotiations and has participated on the negotiating team for many years.

In addition, Dr. Rob Sutherland has joined the team as an observer. He has recently commenced a two year term as chair of the Economic Benefits Committee.

The bargaining team now includes Dr. Dan O’Donnell (chief spokesperson), Dr. Rumi Graham, and Mr. Terry Sway. Observers on the bargaining team are Dr. Joy Morris, Dr. Rob Sutherland, and Dr. Kelly Williams-Whitt. Which is a lot of doctors.

Bargaining update for July 16: one article agreed-in-principle and some structural discussions

Negotiators for the Faculty Association and Board met yesterday for a further bargaining session.

The session was very productive, with one agreement-in-principle, several articles making significant steps towards provisional agreement, and the introduction by the Board team of a possible new way of organising parts of the Collective Agreement.

The Articles under discussion

The articles exchanged were:

ULFA Board
1 (Preamble and objectives),
3 (Amendments),
23 (Mediation),
24 (Appeals of Recommendations by STP Committee and Appeal Committees)
17 (Personnel Committees),
“Part III” (see below),
30 (Travel Fund),
31 (Research Fund),
Schedule A “Parts I through III”

You can follow the current status of all articles under negotiations here.

Article 23 (Mediation)

The two sides came to an agreement-in-principle to delete Article 23 (Mediation). The current Article 23 overlaps with several other articles including 9 (Personal Files), 11 (Rights and Responsibilities), 22 (Grievance), and 25 (Discipline) as well as several policies and traditional management responsibilities to maintain a safe workplace. The previous language could also be read as attempting to constrain students and members of other bargaining units over whom this agreement has no jurisdiction. This was the fourth iteration of discussions on this article.

Articles 1 (Preamble), 3 (Amendments), 24 (STP appeals), 30 (Travel Fund) and 31 (Research Fund)

The two sides came closer to reaching agreement on all of these articles. These articles have been exchanged multiple times and in most cases the language that remains outstanding focuses on a single conceptual issue that is reflected in just a small number of the clauses in that article. Discussion at today’s meeting revealed possible ways forward on several of these outstanding issues.

Articles 17 (Personnel Committees), “Part III,” and Schedule A “Parts I, II, III”

Article 17, “Part III,” and Schedule A (“Parts I, II, III”) represent the first iteration of the University’s proposal to collect and group together material that is distinct for each employee category in separate sections or “Parts.” This proposal involves a major reorganisation of the Handbook including the movement of large amounts of material from previously disparate Articles.

In today’s presentation, the University provided its initial example of how this grouping might affect individual employee categories, with a section on Academic Assistants and Instructors (“Part III”) and versions of Schedule A (economic benefits) for three out of the four proposed employee groups: Faculty, Professional Librarians, and Instructors/Academic Assistants. In the case of Article 17, the University provided a first look at how the “source” articles might look after material that is arguably specific to each group has been removed.

This was the first presentation of examples of this approach, which involves some fairly substantial changes in organisation and is at the moment still incomplete. We can expect several iterations of these articles (and the corresponding articles in the Collective Agreement’s “Common” section) before a final agreement will be reached.

Future Negotiations

The University and ULFA have a negotiating session scheduled for July 25. Since it has been impossible to find common times for negotiations in August, the parties agreed to meet again in September, and are attempting to schedule potential negotiating dates from the beginning of September through to the end of December. The two sides also discussed the pace of negotiations in the fall and other administrative issues.

Bargaining Team Membership Update

Today, ULFA also informed the Board that effective July 26, Rumi Graham will be taking over from Paul Hayes as an official member of the ULFA bargaining team. This change has been planned for some time, due to Paul’s forthcoming semester in Japan at Hokkai Gakuen University. Rumi has been an observer throughout negotiations, so is well-informed and prepared for this role.

Essential Services Case Management Meeting

On July 12, ULFA and the University had a case management meeting with Essential Services Commissioner Gwen Gray to discuss the University’s application for exemption on Essential Services.

The meeting was very productive and the Board has agreed to temporarily pause further action on the request for exemption. In the meantime, the parties have agreed to meet and begin bargaining the Essential Services Agreement without prejudice to the Commissioner’s decision on the exemption.

The parties looked for dates to negotiate in July but due to availability issues, are seeking dates to start in mid-August. A second case management has been schedule for July 26 at which point we will discuss our progress.

 

Bargaining Updates: Essential Service Agreement and Bridging

Here is the latest news on two ongoing aspects of the 2018 negotiations.

Essential Services Agreement

An Essential Services Agreement (ESA) is an agreement between an employer and a union regarding the provision of essential services in the event of job action. ESAs were introduced for the Post-Secondary sector when labour relations were moved into the Labour Code by Bill 7.

Under the Code, an Essential Service is an activity whose interruption would “endanger the life, personal safety or health of the public,” or that is “necessary to the maintenance and administration of the rule of law or public security” (Division 15.1 Section 95). Faculty Associations and Universities are required have an ESA in place (or request an exemption if no essential services are carried out) before any job action (e.g. Lockout or Strike) or formal mediation can take place. We have discussed ESAs several times over the last year, including here, here, here, here, and here.

University files for an exemption

On June 26, the University of Lethbridge filed a unilateral application for an exemption to this requirement for an ESA. Under Section 95(21).2 of the Code, the Commissioner of Essential Services may grant an exemption if the “the employees in the bargaining unit represented by the bargaining agent do not perform essential services,” or the services they do provide “can be maintained during a strike or lockout by other capable and qualified persons who are not employees in the bargaining unit” and who have not been hired specifically to provide this service during the job action (i.e. strike breakers).

In its application, the University argued that no ULFA Member carries out any essential service. This position was determined by the University without formal discussion with ULFA. It is also at odds with evidence collected by the Faculty Association that suggests there are a small number of members who carry out tasks on a regular or emergent basis that cannot be interrupted without endangering the life, personal safety or health of the public.

Next Steps

A call with the Commissioner for Essential Services to discuss the University’s application for an exemption has been scheduled for July 12. We will provide additional updates as they become available.

Unfair Labour Practice Complaint: Bridging

The University and ULFA have both submitted positions to the Labour Relations Board with regard to the application of the “bridging” provisions of the Code (esp. section 138(1)), particularly with regard to the Cost of Living Adjustment (COLA) of Schedule A.02 in the Faculty Handbook.

ULFA’s position is that Section 138(1) requires COLA to be paid to its members on July 1, 2018 as part of these bridging positions and that a failure to honour this requirement is an Unfair Labour Practice. The University argues that the question of whether COLA is subject to bridging is a question for “Interpretation” under Article 1 of the Faculty and Sessional Handbooks and therefore not subject to a ruling from the Labour Board. You can read more about this issue here, here, and here. A background discussion of the issue can be found here.

University and ULFA agree to argue request for deferral through written submissions

On July 4, the Labour Board accepted a proposal from the University and ULFA to address the University’s request for a deferral of the case using written submissions only. According to this agreement, the University will have until July 18th to make its submission. ULFA will be given until July 25 to respond to the University’s submission. The University will then have until August 1 to make a response to ULFA’s response.

Next steps

If the University wins a deferral, the matter will be referred to the Interpretation Committee under Article 1 of the Faculty Handbook for a decision. In the event the Interpretation Committee cannot reach an agreement, the matter will then be referred to an arbitrator for mediation or, if mediation is unsuccessful, a decision by Final Offer Selection (Article 1.07).

If the University loses its request for a deferral, the Labour Board will consider ULFA’s application for a ruling on the applicability of the bridging provisions to the 2016-2018 Collective Agreement. In that case, a hearing will likely be scheduled for the matter in the early fall.

Again, we will keep Members updated as events progress.

Board files responses to Labour Board application

On June 15, ULFA filed an application to the Alberta Labour Relations Board (ALRB) under section 16(3) of the Labour Relations Code regarding an alleged unfair labour practice. You can read more about the background to ULFA’s application here and  here.

The fundamental issue at question was whether the “bridging” provisions of the Code apply to various economic benefits in the current Collective Agreement, particularly the calculation and application of a Cost of Living Adjustment (COLA) and other increases called for by the collective agreement (e.g. Career Progress Increments, Merit Increments, Professional Supplement). Bridging is the process by which the terms of a collective agreement are deemed to continue to apply to the parties, notwithstanding any termination date in the agreement, after notice to bargain has been served.

The University filed a response to ULFA’s application on June 26. In its response, the University argued

  1. That ULFA’s application was premature in as much as the Collective Agreement had yet to expire at the time of application;
  2. That the dispute relates only to the payment of COLA and not Career Progress or Merit Increments or the Professional Supplement. In contrast to its practice during the 2014, 2013, and 2004 negotiations (during which some or all of these payments were withheld and paid retroactively after settlement), the University indicated that it intends to pay Career Progress, Merit, and Professional supplement beginning with the July pay period;
  3. It does not intend to pay COLA barring a ruling to the contrary from the Labour Board or arbitration under Article 1 of the Collective Agreement;
  4. That the dispute is primarily a matter of interpretation of the Handbook rather than the application of the Code to the Handbook, and hence should be handled under the provisions of Handbook Article 1 rather than by application to the ALRB.

In addition, the University echoed ULFA’s opinion that negotiations are progressing constructively and cordially.

Point (2) from this list important, because this means that Members who are eligible should a) have immediate access to their 2018 Professional Supplement; and b) have career progress and merit apply to their July 2018 pay cheque. Only the question of the application of the COLA remains in dispute. All members who have earned Career Progress and/or Merit Increments in 2017-2018 should see these amounts applied in their July pay cheques; all members who have access to Professional Supplement funds should have access currently to their 2018-2019 funds.

Next steps

On June 28, the University followed up on point (4) with an application to the Labour Relations Board asking it to decline to act on ULFA’s request for a ruling and provide instead “declaratory relief” that the question should be handled using the provisions for binding arbitration under Article 1 of the Handbook. Depending on how an arbitrator ruled, this could prevent ULFA from accessing its statutory rights under the Code and Bill 7. ULFA’s position remains that the question of whether bridging applies to the 2016-2018 Handbook is clearly a question of the application of the Code, rather than the interpretation of the Handbook.

Currently, the two sides are discussing with the Labour Board the best means of dealing with their competing applications. Meanwhile, bargaining continues, with the next two negotiating sessions set for July 16 and 25.

We will provide more details as they become available.

ULFA prepares Labour Board application over contested “bridging” provisions

In a May 29th post, we reported on a continuing disagreement between ULFA and representatives of the Board of Governors of the University of Lethbridge concerning the applicability of “bridging” provisions within the Alberta Labour Relations Code to our current negotiations and collective agreement.

After several exchanges, the two sides have been unable to resolve this dispute.

In a letter dated June 12, University President Mike Mahon invoked the provisions of Article 1 of our current collective agreement, requiring the President of the Faculty Association to convene an Interpretation Committee on this matter within 5 Working Days.

ULFA has indicated to the University its belief that Article 1 is an inappropriate forum for the resolution of questions surrounding the application of the Code to our current collective agreement. We believe that the invocation of Article 1 by the University in the face of these objections could be understood as an unfair labour practice in as much as it could be understood as circumventing the provisions of the Labour Code and causing the Association and its members to surrender rights they have under that legislation. The Association has determined that the best course available to it in the face of this emergent request from the Board is to file an application with the Alberta Labour Relations Board (ALRB) within the next four working days.

We have informed the University of this intention this afternoon.

The process to be followed in this case will be similar to that followed in our previous application to the Board with regard to the relationship between the Faculty and Sessional Lecturers’ “Handbooks.” The expedited process in that case took approximately two and a half months to resolve. Because this matter, like the last, relates to ongoing bargaining, we expect that the process will be similarly expedited. We remain, of course, open to other solutions that do not abrogate our members’ rights under the Code.

We will post updates as further information becomes available.