Bargaining Update (January 17). Response to Board “Parts”; Movement away from agreement on Article 6 (Communication); Negotiations resume on Article 22/1 (Grievance and Interpretation)

Jan 28, 2019 | Bargaining

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).

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

1. make the collective agreement considerably easier for Members and Management to navigate;
2. allow for quicker settlements in future rounds of negotiations by reducing the number of places in which potentially controversial language is located; and
3. 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.

Athabasca Collective Agreement Bargaining Reaches Impasse

Jan 25, 2019 | Bargaining

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.

Progress on an Essential Services Agreement

Jan 24, 2019 | Bargaining

Bargaining update (December 20); ALRB Resolution Conference (January 8); Town Halls (Jan 9 and 10)

Jan 20, 2019 | Bargaining

December 20

ULFA and representatives of the Board of Governors met on December 20th. The sides discussed four articles (as always, you can follow the progress of negotiations here):

The main item of discussion was Article 6 (Communication and Information). Although the two sides have agreed to a lot of language in this article in five exchanges over the past few months, the previous version presented by the Board of Governors on November 15 moved away from some of these originally common positions. In this sixth exchange of the Article, ULFA hoped to reintroduce some areas of previous agreement and bring things nearer to a close.

In a detailed discussion lasting approximately half the available time, the two sides discussed various practical and philosophical issues with regard to the article: the degree to which specific types of information are truly necessary for co-management of the Collective Agreement (now statutorily required under the Labour Code); how easy or difficult it is to collect certain kinds of information; and broader questions of management rights and the contractual function of letters of appointment. The Board of Governors will use this discussion to inform their next response on this article.

Articles 11 and 32 were also fully presented with discussion. Article 11 deals with several aspects of Academic Freedom and responsibility, including duties towards students and colleagues. Article 32 discusses various aspects of the way salary, increments, and other economic benefits are determined. This was a first response by the Board of Governors to this article, which ULFA had initially presented in June. The Board presented their response in this meeting at the request of ULFA, who want to include this material in their broader response to the Board’s “parts” (a thorough-going reorganisation of the Collective Agreement proposed by the Board of Governors in various stages from June through November 2018). Finally at the end of the session, the Board of Governors handed over a response to Article 16 (Termination of Appointment). Since there was little time to discuss this article, the two sides agreed to reserve further discussion until the next meeting (January 17).

The two sides have a long-standing agreement that ULFA will begin its presentation of a response to the “Parts” beginning on January 17. The presentation of the full response should require three meetings and as a result is expected to conclude in February.

ALRB Resolution Conference

The two sides met at the ALRB on January 8th for a Resolution Conference regarding the payment of COLA which, in ULFA’s view, is required by the Labour Code. The purpose of a Resolution Conference is to determine whether there is scope for the two sides to come to agreement before a full hearing.

The Resolution Conference took the form of a mediation session. The two sides met separately with a Labour Board representative (in this case, Commissioner Gwen Gray). Ms Gray began with ULFA, discussing its understanding of the issues and devoting particular attention to the details of the “Expedited Package” it presented last December. She then went to discuss the case with the Board of Governors representatives.

After a brief return for clarification with ULFA, Ms Grey indicated that no resolution seemed possible. The two sides then met for a case management meeting in which legal counsel for both sides explored positions, and discussed the documentation and witnesses they intend to call at the hearing.

Town Halls

On January 9 and 10 representatives from ULFA’s bargaining team met with Instructors and Academic Assistants. The goal of these town halls was to

• seek input on some language ULFA was considering adding to the Instructor/Academic Assistant article (Article 15);
• discuss the current state of negotiations and game out responses to various possible bargaining outcomes.

The bargaining team would like to thank all Members who attended the town halls for their insights and contributions to some very helpful discussions.

ULFA will be holding a number of town halls over the course of the semester with different employee groups to continue this discussion. Although some town halls may be aimed at specific employee groups, all Members are welcome to attend any of the town hall meetings.

Bargaining Committee and Job Action Committee–Slides from the December 6 FGM

Jan 9, 2019 | Bargaining

Here are the slides from the Bargaining Committee and Job Action Committee from the December 6 ULFA Fall General Meeting.

Bargaining update: December 4

Dec 9, 2018 | Bargaining

Bargaining teams for the Board of Governors and ULFA met as scheduled on Tuesday December 4.

ULFA brought proposals to the meeting for Article 6 (Communication), 11 (Rights and Responsibilities), and 26 (Financial Emergency and Redundancy). The Board of Governors’ team brought a proposal for Article 9 (Personal Files).

The meeting ended up focussed entirely on Article 9. The Board of Governors’ team made its presentation and then asked the ULFA team to take a caucus to consider whether it would be able to agree the proposed language in principle. After a brief review that uncovered a number of relevant discrepancies between this proposal and ULFA’s previous language for this article, we re-convened to discuss how to use the remainder of our meeting, and engaged in a short but productive discussion of the differences we had observed. ULFA then indicated that it could either take Article 9 and return with a new proposal next meeting or take a longer caucus to revise the Board’s current language during this meeting. The Board side asked ULFA to take a longer caucus to prepare a counter-proposal for presentation in the same meeting.

After about 75 minutes, the two sides met again and ULFA presented its counter-proposal. With a few additional edits, the two sides were able to come to agreement. This also coincided with the end of the three-hour session. You can follow the status of all articles in this round of negotiations here.

This is the first time we have taken this approach in negotiations. In all, the two sides spent between 45 and 60 minutes in face-to-face discussions and almost two hours in caucus. While it is not unusual for teams to work like this on a single article towards the end of contract negotiations, it is somewhat less common to see it with so much still on the table, and in relation to a relatively technical article like Article 9.

Both sides agreed to bring proposals to the next scheduled bargaining session on December 20, and that for ULFA this means bringing our proposals for Articles 6, 11, and 26 since they were not presented on December 4.