The Alberta Labour Relations Board ruled in ULFA’s favour on Friday in the first stage of an Unfair Labour Practice complaint against the University of Lethbridge’s Board of Governors (You can read more about the key issues at stake and the history of this complaint by following the links from this post). This ruling allows the process to continue to a hearing on the substantive issues raised in ULFA’s original complaint.
The core issue in this complaint involves the continuation of terms and conditions beyond the expiration of the collective agreement on June 30, which is known as “bridging” under the provisions of the Labour Relations Code (Section 130), and the changing of terms and conditions of employment after notice to bargain has been given, which is known as a “statutory freeze” (Section 147). Specifically, ULFA argues that both sections apply to the continued payment of benefits such as COLA as it is written in the current Collective Agreement and that the failure to do so represents an unfair labour practice.
The Governors argued that the question of whether COLA should be subject to bridging was a question of how of the current Handbook(s) should be interpreted, rather than a disagreement over the application of the Code. As a result, they argued, the question was more appropriately dealt with under the Interpretation processes described in Article 1 of the current Handbook. Under Article 1, the question would be referred for resolution to a committee consisting of the ULFA and University Presidents. Should this committee fail to reach agreement, the two sides would then prepare final positions which would be referred to an Arbitrator for selection. The Arbitrator would not be allowed to mediate the dispute and Members could, conceivably, lose newly acquired rights under Bill 7.
In Friday’s ruling, the Labour Board rejected the Board of Governors’ argument.
In doing so, the Labour Board relied heavily on the tests used in U.N.A., Local 75 v. WestView Regional Health Authority,  Alta. L.R.B.R. LD-031 (“WestView”), which was cited by both ULFA and the Board of Governors in their written submissions:
12 In exercising its discretion to defer to arbitration, the Board balances two public interests. The first is the public interest in having employers and unions address their day to day disputes about the workplace through their own dispute resolution process. The second is the interest in having a single tribunal oversee access to and the broad rules of collective bargaining. The primary factor is whether the application raises an issue of “statutory proportions”. See: Electrical Contractors Association of Alberta 85-016.
13 There is no easy test of when a matter raises an issue of statutory proportions. Some of the questions used by the Board to assess whether the matter is one of statutory proportions are:
- Does the issue affect only the parties to the agreement or will it affect the labour relations community?
- Does the collective agreement enable the arbitrator to adequately remedy the issue?
- Is the matter primarily a statutory right or obligation, or a collective agreement right or obligation?
- Does the issue go beyond the collective agreement to the collective bargaining relationship?
- Is the statutory issue the main issue in the proceeding or an ancillary issue?
- Do issues demand the labour relations expertise of the Board more than the contract interpretations expertise of an arbitrator?
On the basis of these tests, the Labour Relations Board found that “the matter raised in ULFA’s complaint is a matter of statutory proportion,” noting:
The parties are bargaining under a different statutory regime than existed when they entered into the two previous collective agreements. They are now subject to the collective bargaining provisions set out in the Code. The application of the bridging provision in section 130 of the Code must be considered and applied in the context of this dispute, as well as the freeze provisions contained in section 147(3) of the Code. The University also averted to provisions contained in the Post-secondary Learning Act in effect when the agreements were negotiated. While the Board may be required to interpret provisions in the collective agreements, this task is not an unusual one for the Board to undertake in complaints of this nature.
Indeed, the Board concluded,
The interplay of these statutory and contractual provisions raise questions unique to the post-secondary education sector which have not been addressed by the Board in previous decisions and it is possible the outcome of the decision will affect other parties in the sector.
The next steps in the Labour Board process are a case management meeting (currently scheduled for November 28) and a two day hearing (Dec. 18 and 19) all of which will take place in Calgary.