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.
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.
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.
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
- That ULFA’s application was premature in as much as the Collective Agreement had yet to expire at the time of application;
- 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;
- 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;
- 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.
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.
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.
Bargaining teams from ULFA and the Board of Governors met for a scheduled 4 hour meeting on June 8th. During the meeting, which was extended by almost an extra hour, the two sides exchanged language on 18 articles and schedules (you can see the status of all articles here):
- Article 3: Amendments (presented by ULFA)
- Article 4: Applications and exclusions (presented by ULFA)
- Article 5: Recognition (presented by ULFA)
- Article 6: Communication and Information (presented by ULFA)
- Article 9: Personal files (presented by ULFA)
- Article 10: Courses taught in addition to assigned teaching duties (presented by ULFA)
- Article 11: Rights and responsibilities (presented by the Board)
- Article 16: Termination of appointment (presented by the Board)
- Article 22: Grievance (presented by the Board)
- Article 23: Mediation (presented by the Board)
- Article 24: Appeals of recommendations by STP Committees (presented by the Board)
- Article 26: Termination (presented by the Board)
- Article 29: Intellectual property (presented by the Board)
- Article 30: Travel fund (presented by the Board)
- Article 31: Research fund (presented by the Board)
- Schedule A: Salary schedules and stipends (presented by ULFA)
- Schedule B: Economic benefits (presented by ULFA)
- Schedule E: Copyright (presented by the Board)
Finally, the Board side gave a preliminary presentation on their proposal for a new structure to the Collective Agreement comprising a “Common Agreement” (i.e. articles that apply to all categories of Academic Staff), and four “Parts” that apply to different categories of members (i.e. the Professoriate, Librarians, Instructors/Academic Assistants, Sessional Lecturers).
The language presented ranged from new proposals (i.e. the first language presented on the Articles in question), to a fourth or fifth exchange. New articles included Articles 16, 26, 29, 30 and 31 and Schedules A and B. Articles 4, 5, 6, 9, 11, and 24, as well as Schedule E, involved first responses to material previously proposed by the other side. Articles 3, 10, 22, and 23 have been exchanged several times, in some cases as recently as this past Monday.
In contrast to last session, in which ULFA was able to accept in principle two responses prepared by the Board, on this day the two sides were unable to come to any provisional agreements. Several articles, however, seem quite close to provisional settlement. It seems likely that the two sides will agree to some at our next meeting.
Under the ground rules we are following, articles can be accepted in principle by the two sides during negotiations; final acceptance, however, depends on a settlement of the entire Collective Agreement. This approach allows greater flexibility in negotiations as it allows on the one hand for the two sides to build trust and agreement by gradually settling language; but on the other it means that they can also always reopen otherwise “settled” articles should additional tradeoffs become necessary to settle more contentious issues.
In addition to these “easy” articles, there are others in which there are larger differences in goals or expectations. For these it seems likely that the two sides will need a number of additional meetings and exchanges of language before agreement is reached.
As with all negotiations this spring, the meeting was cordial and included some broad and helpful discussions about the motivations behind some language proposals and about how open the presenters might be to particular concepts that could arise in counter-proposals. The next bargaining session is scheduled for June 18.
Bargaining update for June 4: More language exchanged, some provisional agreements, and discussion of economic context
The ULFA and Board bargaining teams met for a three-hour session on June 4.
The sides had agreed that they would discuss the economic context of negotiations in this meeting and exchange responses to each other’s proposals. (You can follow the status of individual articles here).
The Board side presented responses to the Preamble, Article 3 (Amendments), 7 (Annual meeting), 8 (Delegation) and 10 (Courses taught in addition to assigned teaching duties). They also introduced a new proposal on Article 25 (Supervision and Discipline).
In the case of Articles 7 and 8, the two sides were able to provisionally sign off on the proposed revisions. According to the ground rules we are using for these negotiations, articles that have been initialled are considered approved in principle; final approval, however, depends in each case on approval of the entire agreement.
ULFA prepared responses on Articles 1 (Interpretation–Combined with 22 Grievance), 4 (Applications and Exclusions), 5 (Recognition), 9 (Personal files), 22 (Grievance), 23 (Mediation), 27 (Holidays), 28 (Vacations). It presented its language on 27 and 28 before we took a break, halfway through our scheduled meeting time. At the break, ULFA proposed that presentation and discussion of the remainder of these articles be put off until our next meeting, so as to leave sufficient time for the two sides to present about the economic landscape for bargaining.
Discussion of economic contexts
The two sides devoted the second half of the meeting to presentations on the economic context for negotiations. In both cases, these made frequent reference to our main comparators: U of C, U of A, Regina, U of Saskatchewan, and Trent. Mount Royal and Athabasca were also occasionally referred to.
The topics covered by the two presentations included: relative cost of living (housing prices, consumer goods, utilities) in Lethbridge vs the cities of the comparator institutions; levels of University revenue (including tuition revenue and government grants); differences among the salaries paid at the U of L vs. its comparator institutions (including current salary levels by rank, the growth of salaries, and the percentage of the total budget that salaries represent); ratios of temporary (term) to continuing/tenured academic staff positions; and the breakdown and history of the University’s budget allocations. Both sides had questions that will require further research.
ULFA also informed the Board of the areas where members have indicated that improvements to health benefits are most critical, and is provisionally scheduled to make an opening proposal on language pertaining to economic matters (i.e. Schedules A and B) at our next meeting on June 8.