Tuesday, March 20, 2018

U of L loses at Labour Board

A few weeks back, I reported on an application before the Alberta Labour Relations Board (ALRB). The crux of the issue was that the University of Lethbridge was trying to compel the faculty association (FA) to negotiate two collective agreements: one for regular faculty and one for sessionals.

This issue had come to a head because, in the spring of 2017, the government moved faculty collective bargaining mostly under the ambit of the Labour Relations Code. Most FAs are currently in their first round of bargaining in this new arrangement and both sides are maneuvering for advantage under the new rules.

Typically an employer tries to carve up the workforce into multiple units in the hope of weakening the union’s bargaining position (and, specifically, its strike power). For example, the employer might go after the weaker unit for rollbacks and then use these rollbacks to try to whipsaw the stronger unit into a cut.

Last week, the ALRB issued its decision. The question before the Board was:
Does the [Labour Relations] Code allow for or preclude the possibility of more than one bargaining unit for the academic staff and/or more than one collective agreement for the academic staff?
The Board’s decisions was (1) there is a single bargaining unit, and (2) the parties can conclude multiple collective agreements (each covering a portion of the unit), but (3) neither side can force the other side to accept more than one agreement.

In crude terms, the union won and the employer lost. The Board largely dismissed the university’s arguments, excepting the U of L’s argument that the Code allowed for the possibility of two collective agreements. This win by the U of L was undermined by the ALRB’s decisions that U of L cannot force two collective agreements on the FA if the FA does not want this arrangement (which was the whole point of the application).

This decision has some other interesting points. Relying on the Interpretations Act, the ALRB largely rejected the unions’ arguments that the wording of the LRC (which is in the singular) preludes the bargaining of more than one collective agreement. It is interesting to speculate why the unions would argue a point so easily dismissed--perhaps there is a meta-game afoot here?

The Board also rejected the argument that the authority of FAs is limited because of how they are created under the Post-Secondary Learning Act. Instead, the ALRB asserts that the 2017 amendments to the Code makes FAs bargaining agents. This means that FAs can, for example, represent workers other than those designated as academic staff members.

One of the stranger aspects of this case is that U of L relied on internal staffer to argue their case. He was up against three union-side labour lawyers. The reports I have from the hearing are that this contest was (not surprisingly) a real mis-match.

This choice of representation was a strange one, given that these early PSE cases are essentially setting the ground rules for labor relations going forward. The speculation I have heard is that U of L was trying to limits its legal costs. This may reflect the big chunk of change it would have dropped on last year’s Tony Hall discipline case.

I have also heard that the government has been paying attention to the amount that post-secondary institutions are spending fighting their employees. And is pointedly questioning whether this is the best use of taxpayers dollars. It will be interesting to see whether such attention causes a change in the tone of labour relations or whether institutions just choose to continue fighting, but with one hand tied behind their backs.

-- Bob Barnetson

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