The FNBFA is very concerned about the imposition of “Conciliation Boards” by the provincial government in university collective bargaining over the last few years. We are opposed to the routine use of Boards because of their negative effect on the bargaining process and because this use implies that universities are simply part of the public sector, and thus not independent, autonomous units.
Conciliation Boards have been imposed in three university cases: Université de Moncton (February 2008), University of New Brunswick (February 2010), and Mount Allison (November 2010). Except for the nursing home case of 2005, Boards had not been used in cases which fall under the Industrial Relations Act since the 1980s. Universities are not part of government, professors are not public servants, so we do fall under the Industrial Relations Act and not under the Public Service Labour Relations Act.
Our concern is that the use of Conciliation Boards seems to have become routine in university cases. Since the imposition of the first Board at Moncton in 2008, there have been a couple of cases of university bargaining where no Board was called, but in these cases agreements were reached at the table, so the parties never reached the point where the minister could impose a Board. In all university cases since 2008 where the Minister could impose a Board, a Board has been imposed.
Although permitted under the Act, the use of Conciliation Boards is a big change to the ordinary conciliation process. Ordinarily, as the collective agreement approaches its termination date, the two sides start bargaining. They continue until an impasse is reached. At that point either side (but often both together) can ask the government to name a “conciliator”. The conciliator is a public servant whose task is to get the two sides to an agreement. It is not the task of the conciliator to determine what a just or reasonable agreement is – the conciliator is neutral, and seeks only to get the two sides to agree. If conciliation does not bring an agreement, the conciliator reports to the Minister. The Minister then usually issues a “No Board” report. This means that no Conciliation Board will be named, and the two sides will be in a strike or lockout position, after a brief delay.
Under this method of bargaining, the conciliator has a great deal of power, as the last step before job action. The parties come under a lot of pressure to settle.
If a Board is named, pressure comes off the two parties. No job action is possible until the Board reports. While the Act limits the time the Boards can take, Ministers can extend the deadlines as much as they want. The Moncton Board (2008) had not reported in 4 months, when an agreement was reached by the two parties; the UNB Board (2010) took a full year to report; only the Mount Allison Board (2010) was placed under a strict deadline by the Minister, and it reported in less than 3 months.
By removing the pressure to settle, Conciliation Boards remove power from the provincial conciliator. The conciliation service – which very often succeeds in getting the parties to an agreement – then becomes irrelevant.
If the parties believe that a Conciliation Board will be named, bargaining is slowed from the very beginning because the Boards are empowered to recommend a settlement. Naturally, Boards will take whatever is on the table and “split” the differences in some way. It thus is not to the
advantage of either side to make any concessions during bargaining. Instead each side wants to keep as much as possible to their initial positions.
Calling a Board implies that the government sees universities as forming part of the public service (where Conciliation Boards are sometimes used). While institutions, such as the community colleges, which come under the Public Service Labour Relations Act may be subject to such Boards, their use for institutions which come under the Industrial Relations Act is very rare, and seems limited to the universities. If the government considers the universities to be part of the public service, autonomy is lost.
The FNBFA has communicated these views to the last three ministers and their officials. We have recently had some very encouraging communication from the current government. Our objection is to the routine use of Conciliation Boards, and our concern is that Boards are being
used in a routine way in the university sector (but in no other “industry”). While the ministry now says that conciliation boards are and should continue to be a rarely used tool under the Industrial Relations Act, the fact that they have been used in every university case since 2008 where the Minister had to choose to issue a “No Board” report or not is disturbing. We still believe that Boards should not be called, and that it should be made clear from the beginning of negotiations that no Board will be called. We furthermore encourage university presidents to announce they will not request that the minister call a Conciliation Board, since we believe that were there to be no request for a Board from the university presidents, the Minister would not call a Board.