Monday, November 30, 2015

Moving faculty bargaining under the Labour Code?

The Government of Alberta is currently examining how it might bring its laws regarding unionization and collective bargaining into compliance with a recent Supreme Court decision that upholds the right to strike. Until this decision, most public-sector workers in Alberta were compelled to use arbitration to resolve bargaining impasse.

Post-secondary faculty are within the scope of this review. Presently, faculty associations are created by and collectively bargain under the provisions of the Post-Secondary Learning Act (PSLA). As set out in the recent submission to government by the Confederation of Alberta Faculty Associations (CAFA), the labour provisions of the PSLA have some gaps that include:
  • no language requiring bargaining in good faith and no meaningful way to address unfair labour practices,
  • no meaningful way for academics to enforce their association’s duty of fair representation,
  • no provisions address strike/lockout, if that was the method of dispute resolution, and
  • the employer determines the membership of the bargaining unit (this is called designation), a power that employers sometime use mischievously.
CAFA’s submission seeks amendment of the PSLA. Even though it was explicitly asked to do so, CAFA did not provided the government with feedback about the implications of moving faculty associations within the ambit of the Labour Relations Code (the “Code”). This move is something that the faculty association at Mount Royal University supports and to which the faculty association at MacEwan University is not opposed.

Here are some initial thoughts about the implications of moving faculty associations under the ambit of the Labour Relations Code. While this analysis was initially completed for the Athabasca University Faculty Association, I have tried to broaden the analysis so it is applicable to all associations in Alberta’s colleges, universities and technical institutes.

Representational rights: A faculty association’s authority to represent its members is established by statutory decree under the PSLA. If the government transitions associations to operating under the provisions of the Code, there will need to be some consideration of establishing association’s representational capacity. The most sensible option is transitional language that deems association to be certified bargaining agents.

One risk under the Code is that other unions could seek to represent faculty members via raiding (i.e., asking faculty to select a bargaining agent other than the faculty association). I don’t think this is a real risk in the short-term because faculty members don’t (as a group) consider themselves workers and thus would be unreceptive to organizing drives by mainstream unions. In the longer term, though, faculty associations that do a poor job of representing members (or important sub-groups, such as contract staff) might find themselves the target of a raid. And, perhaps, rightly so.

Bargaining Unit: At present, the PSLA gives the employer the authority to determine the membership of the bargaining unit, including the right to designate individuals and groups as members of the union. Under the Code, the Labour Relations Board has the authority to determine the parameters of the bargaining unit. This neatly resolves the long-standing designation issue, but raises three issues:
  1. Community of interest: Some associations have diverse memberships. Whether such bargaining units have the community of interest necessary to continue on under the Code is unclear. If a group of employees gets carved out of a unit, an association may seek to certify them as a separate unit and continue to be their bargaining agent.
  2. Managerial Exclusions: The Code excludes employees performing managerial functions from the definition of employee (and thus from the bargaining unit). The criteria for determining if an individual is a manager is lengthy and includes supervisory duties, the power to hire and promote, the power to discipline and fire, the power to direct work, supervision of subordinate supervisors, and the power to grant leaves. Those faculty associations whose membership includes Deans (and other managers) would likely see these employees excluded from the bargaining unit.
  3. Professional Exclusions: The Code excludes certain professionals (when employed in their professional capacity) from the definition of employee (and thus from the bargaining unit). These professionals are architects, dentists, engineers, lawyers and physicians. Whether teaching is considered to be “being employed in one’s professional capacity” will depend upon the definition of professional practice for each type of professional. The risk (although I think it is slight) is that some existing faculty members who are registered professionals may be excluded from the bargaining unit. 
Overall, determining the boundaries of the bargaining unit would likely be sensibly left to the Labour Relations Board.

Collective Bargaining: Most associations negotiate their collective agreement at a single table. A small number (mostly in the university sector) negotiate money and language at different tables and on different timelines. This latter arrangement is unlikely to fly under the Code and some transitional provisions will be necessary to resolve such outlier arrangements.

Dispute Resolution: At present, all associations use interest arbitration (in various forms) to resolve impasse at the bargaining table. Moving under the Code would allow for strike/lockout to replace arbitration. Some associations (Mount Royal, for example) seem keen to have this provision struck from their agreement in order to allow strike/lockout.

How exactly this transition to allowing strike/lockout would occur is unclear. My assessment is that no associations are ready to bargain under this model. One risk of imposing strike/lockout is that employers could (and some would) use lockout to attack contract provisions such as tenure, sabbaticals and academic freedom while the associations are unprepared. Again, some transitional provisions (e.g., leaving arbitration provisions within existing agreements) might be necessary to avoid a tumultuous transition.

A small number of associations (again, this appears to be a university thing) have a portion of their collective agreement “protected” by a stonewall clause. The stonewall clause means that, absent agreement, impasse on some issues results in the existing language continuing. This sits uneasily with mainstream labour relations practice (wherein everything is up for grabs each time the parties negotiate). The loss of the stonewall clause would mean some long-standing provisions would be vulnerable to employer attack.

Overall, moving unionization and collective bargaining in the post-secondary sector under the ambit of the Labour Relations Code is likely workable. It is disappointing that CAFA did not take the opportunity in its submission to flag for the government areas of concern as the government requested.

This omission may have reflected the speed of the consultation. Yet, it also looks like a strategy (i.e., don’t talk about the non-desired option). Given the government’s continued queries about the impact of moving faculty under the Code, it might be helpful to provide input (however belatedly) about the impact of moving under the Code such that the government can ensure a smooth transition if it decides on the Labour Relations Code option.

-- Bob Barnetson