Wednesday, February 7, 2018

More PSE fun at the Labour Board

This post continues yesterday’s examination of the recent spate of PSE applications in front of the Alberta Labour Relations Board (ALRB). The three applications we’ll look at today all of which touch on who is in the academic bargaining unit.

The Post-Secondary Learning Act (PSLA) is a bit unusual in that it gives the employer the right to designate (after consultation with the academic staff association) who is the association. In almost every other bargaining relationship, the composition of the bargaining unit is determined by the ALRB. This reflects that the ALRB (unlike the employer) has no vested interest in terms of who is in and out of the unit.

Bill 17 retained this unusual designation arrangement but allowed unions to appeal employer decision to the ALRB under s.58.6 of the Labour Relations Code. In the past, there was no meaningful right of appeal unless the employer failed to consult and the union went to court.

The NorQuest College Faculty Association has filed an unfair labour practice complaint against NorQuest College. The college laid off a number of academic staff members last June. There are two issues here.

First, the union asserts that the manner of the layoffs entailed the employer negotiating directly with the staff members (instead of with the union). According to the union, the employer called the three permanent employees into a meeting. While the union was given notice of the meeting several days before, it was not told the meeting was about layoffs until minutes before the meeting.

After the group meeting, the college simultaneously met with each employee individually. The union, having arranged for only one rep to attend the meeting, could not then cover each of the one-on-one meetings. During these one-on-one meetings, the college required each staff member to sign an agreement in order to get the severance pay that they were due under the collective agreement. The signed agreement precluded the employees from filing a grievance.

The union alleges this process violates s.148(1)(a)(ii) of the Labour Relations Code, which says:
148(1) No employer or employers’ organization and no person acting on behalf of an employer or employers’ organization shall

(a) participate in or interfere with

(ii) the representation of employees by a trade union,
Basically, the employer negotiated with each of the laid off employers individually when it asked hem to sign a release that waiver grievance rights (rights which properly reside with the union).

Second (and here is the designation tie in), the jobs were then re-created as support staff jobs in the Alberta Union of Provincial Employees (AUPE) bargaining unit. According to the union, the employer’s lack of consultation about this move violates the employer’s obligation under the designation provisions of the Post-Secondary Learning Act (which requires consultation). Further, the “new” support-staff positions have higher academic qualifications than the former academic positions and the duties have not changed meaningfully.

Various responses are available on line. This gist is:
College: We need more details.
Union: Here you go, dude.
College: We didn’t do anything wrong (although we did ask the employees to sign the releases and we’ve stopped doing that now).
There are 120ish academic staff at Northern Lakes College and 10 or 11 department chairs. The union is seeking to have the chairs included in the academic staff bargaining unit under s.58.6 of the Code.

The union asserts the chairs have no authority to hire, fire or discipline and thus are not managers (who would traditionally be excluded from a bargaining unit) and also that the college failed to consult the union when it designated chairs out of the unit in 1997.

The college’s response is that the union’s application is premature as the union did not ask the Board to designate the chairs into the unit. Until such time, the college asserts, the ALRB has no jurisdiction and, further, the 1997 designation decision (made under different legislation) is outside of the ALRB’s jurisdiction. Interestingly, some (or all?) of the chairs have written to the Board and be all like, no way, Jose.

Finally, the Canadian Union of Public Employees (CUPE) has applied to the ALRB to over turn the college’s designation of contract instructors as academic staff. CUPE currently represents non-academic workers at Keyano. CUPE tried to expand its certificate to include a group of 36 unrepresented instructors last summer but lacked support and withdrew its application.

CUPE then tried to over bargain its certificate and have the instructors into their contract but the employer declined this offer. CUPE then continued its organizing efforts only to find that the Board designated all contract instructors into the academic bargaining unit in December.

CUPE alleges that neither CUPE nor the faculty association were consulted and, by failing to consult CUPE, the college’s designation decision violated the PSLA. It is not perfectly clear what remedy CUPE wants, but it looks like they want the designation over turned, presumably so they can continue to organize among this group.

The college argues that it has no obligation to consult with CUPE since CUPE is neither the academic staff association nor a bargaining agent that represents affected members. The faculty association basically falls in line with the employer, advancing two alternative arguments: the collective bargaining met any requirement for consultation and, since CUPE does not represent academic staff, it has no right to consultation under the PSLA. There is also an argument presented that the ALRB cannot review procedural matters in this case, only the substantive decision.

Overall, these applications suggest there is going to be quite a Bill 7 shakedown cruise over the next bit as the parties all get used to the new rules and try to use them to their advantage. One good thing that has come out of Bill 7 is that there is now a clear and timely process by which unfair labour practices and other issues can be resolved.

-- Bob Barnetson

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