LRB says change in mandate was enough for employer to amend bargaining proposal, but rules AHS went public too soon

The Alberta Labour Relations Board has ruled that a change in government mandate was sufficient justification for Alberta Health Services to replace its original bargaining proposal to United Nurses of Alberta of a wage freeze with a new proposal calling for a rollback in pay.

UNA had argued in an Unfair Labour Practice complaint that the government’s Oct. 29 order to AHS to amend its bargaining position in the third-year wage reopener of the current Provincial General Agreement from a wage freeze to a 3-per-cent rollback was bad faith bargaining.

The employer’s action was of a type generally referred to as “bargaining to a receding horizon.” Normally, in any negotiations the parties must try to get closer, not farther, from the other’s position.

In a written reasons issued yesterday supporting its earlier decision, the Board ruled that “the change in proposal by AHS was in response to the change in the government mandate, which was a change in material circumstances,” and therefore permissible in law.

It stated: “Accordingly, the Board concludes the change in the AHS wage proposal was not a violation of section 60(3) of the Code.”

The Board noted in its decision that “its conclusion and reasons are not indicative as to whether the Board agrees or disagrees with the government’s rationale for the change in mandate. The analysis of the rationale for the proposed change is an issue for the interest arbitrator’s judgment.”

That interest arbitration has now concluded and the arbitration board is expected to issue its decision some time in the New Year.

When the AHS proposal was changed by AHS in response to the government’s orders, AHS VP Todd Gilchrist distributed without consultation with UNA a memorandum explaining the employer proposal. Some managers shared that memo with UNA members.

UNA also argued in its Unfair Labour Practice that AHS was obligated to give UNA sufficient time to review and seek clarification of the new proposal and be provided with the opportunity to communicate with members before they went public.

The Board said in its written reasons that it concluded the Oct. 29, 2019 distribution of the memo to UNA members by managers was a violation of section 148(1)(a)(ii) of the Code.

However, it rejected the remedy sought by UNA, which was for AHS to post a notice in workplaces advising of the Board’s decision and the requirement that the employer not interfere with the union’s representational rights.

In refusing to impose any penalty, the Board stated that “AHS and UNA have a long standing mature relationship which is being tested by the government’s policies on fiscal restraint. The Board does not want to elevate the tensions between AHS and UNA at this time with a Board Notice posted at the AHS facilities.”

The Board noted in its decision that “its conclusion and reasons are not indicative as to whether the Board agrees or disagrees with the government’s rationale for the change in mandate. The analysis of the rationale for the proposed change is an issue for the interest arbitrator’s judgment.”

A link to a copy of the complete decision is posted at right.