ULFA and representatives of the Board of Governors met on Thursday March 14. This was the third meeting since the two sides agreed to investigate an expedited approach to resolving negotiations by focussing on the core elements of each side’s mandate.
As agreed in our meeting on February 21, the first two meetings under this new approach involved presentations on Articles 4-6 (Applications and Exclusions; Recognition; and Communication and Information). This third meeting, on March 14, was to focus on Articles 15 (Instructors/Academic Assistants) and “35” (Sessional Lecturers). ULFA was also able to bring a response to the Board’s latest proposals on Articles 4-6. Finally, in conjunction with their proposals for 15 and 35, the Board of Governors offered new language on Schedules A and B. As always you can follow the progress of individual articles here.
|Board of Governors
|15 Academic Assistants/Instructors
35 Sessional Lecturers
|4 Applications and exclusions
In their proposals for these Articles, the Board of Governors addressed a number of elements in the two sides’ mandates. As is the case with Articles 4-6, the two sides appear to be narrowing the differences in a constructive and creative fashion. While there are still significant and serious areas of disagreement, the last three weeks have seen movement on both sides.
In addition to presenting language, the two sides also arranged a number of additional negotiating days, with meetings scheduled each week through the end of April.
ALRB rationale released
On Monday March 11, the ALRB released a detailed and technical rationale for its February 20th ruling in favour of the Board of Governors on Bridging. You can find the full decision here. You can follow the issues at stake in the ruling starting here and here. As noted in our February 21st blog, this decision means that the status quo continues, in which the Board of Governors withheld COLA increases after the expiration of the previous contract pending any new arrangements in this round of negotiations.
Bargaining teams representing the Board of Governors and ULFA met on Friday March 1 and Monday March 4. These were additional dates provided on short notice by ULFA at the request of the Board of Governors’ representatives in order to explore expediting our work on the remaining unsettled articles.
On Friday, as agreed at our February 21 meeting, ULFA presented Articles 4, 5, 6, 22, and 26. The Board of Governors for its part presented a proposal for an Memorandum of Understanding to postpone further consideration of some proposals until the next round of negotiations. On Monday, the Board of Governors responded to ULFA’s presentations on Articles 4, 5, and 6.
||Board of Governors
|Article 4 Applications and Exclusions
Article 5 Recognition
Article 6 Communication and Information
Article 22 Grievance and Interpretation
Article 26 Financial Emergency
|Memorandum of Understanding (draft)
Articles 4, 5, 6 (responses)
It is difficult to characterise the current state of negotiations. Since these were the first meetings under this new approach, it is too early to tell whether it will lead to the kind of expedited settlement the two sides envisioned in their February 21 meeting that would focus on the key “mandate” issues for each side. While there was some welcome movement on both sides, there were also some old sticking points and we have not reached an agreement in principle on any of these Articles.
Representatives from ULFA and the Board of Governors of the University of Lethbridge attended a hearing of the Alberta Labour Relations Board (ALRB) in Calgary on February 6 and 7. At the hearing, the ALRB agreed to provide a decision, with rationale to follow, on February 20th. You can find out more about the issues at stake in this hearing by reading backwards from here.
The ALRB issued its ruling (without rationale) as promised at the close of business yesterday (Wednesday February 20). In its brief statement the ALRB indicated that there is “not a violation of section 147(3) of the Labour Code” as alleged by ULFA.
The ALRB ruling was brief and raised a number of questions for which we will be seeking further clarification, either via our counsel or after the ALRB provides its rationale. In the meantime, however, it appears that the current status quo will prevail, in which the Board of Governors paid Professional Supplement, Career Progress, and Merit on June 30th, 2018 but not COLA. As we noted in our December 2nd Blog
The main risk to ULFA of the Labour Board hearing is essentially that a loss will make the status quo permanent. The Board of Governors has already withheld the July 1, 2018 COLA; if we lose at the Board, then our members will continue to receive the 0s they are already receiving. They will have lost the COLA adjustment we believe that they are owed. But nobody will be worse (or better) off after a loss than they have been since the Board of Governors began withholding that payment.
In other words, it now appears that Members will not receive retroactive COLA increases in 2018-2019 as a result of the bridging provisions of the Albert Labour Relations Code but rather that their salaries will continue as they now are.
We will add further information to this here and/or in our town halls as it becomes available to us.
Representatives of ULFA and the Board of Governors also met in two negotiating sessions since our last blog: January 31 and February 21. As always, you can follow the progress of individual articles here.
On January 31st, ULFA presented the second installment of its response to the Board’s “Parts,” while the Board presented a response to ULFA’s last proposal on Article 33 Reduced Load and Gradual Retirement:
||Board of Governors
|14 Professional Librarians
25 Supervision and discipline
32 Salary Schedules
|33 Reduced Load
At the meeting, the two sides also began discussions of ways of bringing negotiations to conclusion.
The negotiations on February 21st picked up the discussion of ways to bring negotiations to a conclusion in a more detailed way. ULFA also presented more of its response to the Board of Governors’ “Parts” and the Board provided a response to ULFA’s last proposal on 34 Leaves.
||Board of Governors
|15 Instructors/Academic Assistants
As a result of the discussions about process, the two sides agreed to seek an increase in the number of meeting times and a preliminary approach to dividing up the remaining articles: articles that are key to the two sides’ mandates; articles that require revision due to the exigencies of the Labour Code; and articles involved in the proposed restructuring of the Handbook (i.e. the “Parts”).
If the two sides are able to find a common meeting time next week, this will be devoted to a broad discussion of goals for the remaining articles.
The week after that, ULFA will present material from some or all of Articles 4, 5, and 6 (Applications and Exclusions, Recognition, and Communication) while the Board will respond to ULFA’s proposals on Sessional and Instructors/Academic Assistants (15, 35, but also related parts of other articles including 21 and 32).
In the following meeting, the two sides have provisionally scheduled a response from the Board of Governors to Articles 4, 5, and 6 and, from ULFA, a new proposal on Schedules A and B that takes into account the Board work on Sessionals and Instructors. After that, the sides will endeavour to meet weekly as schedules allow until a final agreement is reached.
Following up on the last post, representatives of ULFA (Kelly Williams-Whitt, Rob Sutherland and Annabree Fairweather) and the Board (Chris Hosgood, Lorna Selinger and Scott Harling) met with about a dozen of our Members, January 28 and 30 to collect detailed information about aspects of their duties as academic staff that might perform essential services. These were excellent conversations and our Members outlined duties involving dangerous chemicals and hazardous materials, supervision of therapies involving at risk clients and oversight of experimental treatments with potential for adverse participant outcomes. Our Members are on the frontline of protecting and enhancing public health and safety.
In a very productive follow-up meeting, February 13, ULFA provided a complete draft Essential Services Agreement that was discussed by representatives of both sides. Clearly there will be some modifications, but we are confident that we now have the foundations for our final agreement.
Bargaining teams from ULFA and the Board of Governors met to exchange proposals on Thursday January 17 (as always you can follow the progress of individual articles here).
||Board of Governors
- Outline of “Parts” response
- Article XX (Common agreement): Evaluation
- Article ZZ (Faculty/Librarians/Academic Assistants/Instructors): Standard STP Procedures
- Article “34” (originally 12): Faculty Members
- Article 6: Communication
- Article 22 (includes Article 1): Grievance
These were important exchanges, particularly in the case of the “Parts” and Article 6.
Handbook Reorganisation (“Parts”)
ULFA began its presentation of a response to the Board of Governors’ “Parts” proposal. You can read more about different elements in the the Board of Governors’ proposal here, here, here, here, here, and here.
In the January 17th meeting, ULFA focussed on its proposal for the overall structure of the Collective Agreement and three sample articles that showed how the proposed reorganisation would
- make the collective agreement considerably easier for Members and Management to navigate;
- allow for quicker settlements in future rounds of negotiations by reducing the number of places in which potentially controversial language is located; and
- speed up the current round of negotiations by identifying and separating out potentially controversial articles (e.g. describing the specific processes to go through during discipline or STP appeals or financial elements) from relatively non-controversial material (e.g. the number and name of the faculty ranks).
The proposal built on the Board’s proposal to divide the Collective Agreement into two main “Parts”: a “common agreement” containing language applicable to all ULFA members (Academic Assistants, Faculty Members, Instructors, Librarians, and Sessionals), and a second set of “Parts,” containing specific conditions for each job category. ULFA’s major objection to the Board’s proposal was the amount of duplication it involved: each “part” would have its own Schedule A outlining economic benefits, its own structures and processes for Personnel Committees, and so on. In ULFA’s view, this would both make the Agreement difficult to oversee and needlessly complicate current and future rounds of negotiations in as much as similar language would need to be negotiated for several job categories in parallel.
ULFA’s proposal was to create a third type of article, organised by process and genericised so that it could be used for each relevant employee category.
To show how this would work, ULFA presented three articles: two new articles containing “genericised” processes (XX Evaluation and ZZ Standard STP processes for Faculty, Librarians, Academic Assistants, and Instructors), and a third showing what the individual employee “parts” would look like (Article 12 Faculty Members).
In the next weeks, ULFA will present the remainder of the employee parts and genericised processes.
Article 6: Communication
In the case of Article 6 (Communication), the Board presented its latest proposal. As you can see from our spreadsheet, Article 6 has been discussed 7 times since negotiations began in May. Since “Communication” in this case involves Management-Union relations and these have changed in fundamental ways with recent changes to the Post Secondary Learning Act and the Labour Relations Code, settling this article is a sine qua non of any final agreement. As a union under the Code, ULFA now has statutory duties that require access to information about its members sufficient to co-manage the Collective Agreement and represent its members under the Agreement and the Code itself.
While the two sides are generally close to agreement on this article, there now appear to be three main areas of disagreement:
- On whether ULFA should be given copies of letters of appointment for new members and members who are changing position or being given modified duties;
- On whether data protection and privacy language in the Collective Agreement should apply to ULFA alone, both ULFA and the Board, or be omitted;
- On whether the Board is obliged to provide ULFA with contractually agreed upon information or whether this obligation extends only to information that is in a form they can easily collect or already do collect;
In the case of the first of these areas of disagreement, the two sides are now farther apart than they were last June: ULFA first proposed that letters of appointment be provided to the union in its proposal of June 8th; the Board of Governors then adopted ULFA’s language in their response of June 18 (also repeated in ULFA’s counter proposal on October 22nd).
In mid November, however, the Board retreated from this joint position, removing Letters of Appointment from the list of information to be provided to the union in the November 15th proposal. It then confirmed that this omission was deliberate and marked a change from their previous position during discussions of ULFA’s counter on December 20th. The current Board proposal once again omits these previously-agreed upon letters.
In the case of data protection and privacy language, ULFA has proposed language that would require the two sides to handle data with care and work together proactively in the event of a data or privacy breach. While both the Board and ULFA are subject to external legislation governing the protection of data (FOIP in the case of the Board, PIPA in the case of ULFA), ULFA’s position has been that including mutual and reciprocal language about data and privacy protection in the Collective Agreement has an important role to play in both educating members and line managers as to their obligations and ensuring quick and effective cooperation in the event of a privacy or data breach. Since such language reinforces but in no way detracts from the two parties’ external statutory obligations, ULFA believes that this is an easy, low risk, and high visibility way of establishing a policy of mutual, proactive collaboration in keeping member data safe.
The Board argues that it should not be governed by the collective agreement in this area. Its position is that FOIP provides members with sufficient protection in the event of a Board of Governors’ breach and that language covering data protection in the Collective Agreement should apply to ULFA alone, and apply only to information collected by the Board and then provided to ULFA.
The last point of disagreement concerns whether the Board can be required to provide the information it agrees to supply under the Collective Agreement. ULFA’s position is that information the Board agrees to share under the Collective Agreement must in fact be provided by the Board in accordance with that same agreement. The Board’s position is that it should be able to refuse to supply information it has previously agreed to provide under the Collective Agreement should it currently not collect that information in the required format or should it determine unilaterally that the information is difficult to collect.
It seems apparent that the two sides will not be able to come to agreement on this article unless there is significant movement on all three of the remaining areas of disagreement. Since these involve fundamental issues of union rights and privacy, it is also possible that this will end up being one of the last articles to be settled in this round.
Grievance/Interpretation (Article 22)
The Board also presented its third proposal for language in Article 22/1 (Grievance and Interpretation). This is a large and complex article and ULFA is currently examining how this latest proposal related to previous exchanges. At first glance, however, the two sides appear to be less far apart in this case than on Article 6.
The Athabasca University Faculty Association (AUFA) announced on January 23 that bargaining had officially reached impasse.
What is impasse and why is it happening at Athabasca?
Impasse occurs when one or both sides conclude that no further progress in negotiations is possible at the bargaining table. You can read more about this in the case of AUFA here.
The threat of impasse at Athabasca University (AU) has been looming for several months (you can follow the progress of bargaining at AU here; Bob Barnetson’s Labour and Employment in Alberta Blog is also a useful source of current information). The norm in public settlements during this round of bargaining in Alberta has involved tradeoffs between “language” and “money”: that is to say unions have generally been willing to accept lower wage increases in exchange for improvements in job conditions, job security, and other working conditions and benefits. While some large provincial unions have accepted “0s” on the monetary side in exchange for significant management concessions on language, it is important to realise that there is no formula. The City of Lethbridge, for example, recently settled with its employees for modest pay increases with “give and take” on language.
The administration at Athabasca University has been much more aggressive than the provincial norm in its approach in this round of bargaining by seeking significant concessions on both language and money. In common with many (but not all) public sector employers, they have been offering no across-the-board salary increase. But in contrast to most provincial public sector employers, they have also been seeking significant concessions on language, focussing particularly on achieving gains in “management rights” with regard to issues like sick leave, discipline, and so on.
In addition to being an outlier in its demands at the table, the Athabasca University administration has also been an outlier in its approach to the bargaining process. It has pursued a “hard bargaining” or highly positional approach which leaves little room for seeking creative compromise. While hard bargaining can be effective for single issue negotiations and when there is a large disparity in power between the two sides at a bargaining table (see for example, this study of EU financial negotiations), studies suggest that it is less effective when there are multiple issues on the table or when it causes parties to adopt entrenched positions. It is also less effective when the “hard” side is in vulnerable to job action by a well-prepared union, which may be the case across the Comprehensive Academic and Research Universities, including Athabasca, Alberta, Calgary, and the University of Lethbridge (for an interesting study of how a vulnerable party can engage in counter-productive hard-bargaining, see this study of Britain’s negotiating stance in Brexit negotiations). Regardless of its short-term effectiveness, hard bargaining also has a negative impact in the long term on future labour relations as it tends to create ill will.
What are the next steps?
The AUFA addressed the possibility of impasse in a December 4th blog. It has since called attention to some of the more unreasonable demands presented by the AU administration, such as language requiring employees to be seen by a Board-selected doctor as part of the basic sick leave process. This type of blanket approach to sick leave has been consistently rejected in arbitral jurisprudence, and represents a considerable and unnecessary invasion of employee privacy. In recent blogs, The AUFA work stoppage committee has begun preparing for job action–arranging supplies, preparing protocols, and making signs. The next steps now that an impasse has been declared involve:
- finalising an Essential Services Agreement (required before the sides can engage in job action or enter into formal mediation);
- beginning formal mediation;
- conducting strike and/or lockout votes
- beginning job action (lockout or strike)
During this process the two sides may also (and usually do) return to the table to seek ways of breaking the impasse. Indeed in the Canadian post-secondary sector, strike votes more often lead to negotiated settlements than they do to work stoppage. In 2018, for example, eight members of the CAUT defense fund held strike votes; all eight contracts were subsequently settled at the table without job action.
In such cases, a strike vote demonstrates that the union’s membership stands behind its negotiating team and is prepared to support it by job action if necessary. Especially when employers engage in hard bargaining as at AU, it can be necessary to demonstrate this support before the employer will engage in the kind of creative consensus-building negotiations that are required to reach a successful agreement. Of course unions should never bluff when it comes to job action. Members who vote for a strike must also be prepared to go on strike should a resolution prove impossible to find at the table.
ULFA supports AUFA’s members as they face these difficult decisions.