Ontario Secondary School Teachers' Federation, District II v. York County Board of Education, 1980 CanLII 903

[1980] OLRB Rep. July 1154

1047-79-U Ontario Secondary School Teachers' Federation, District II, Applicant, v. York County Board of Education, Respondent.

BEFORE: M G. Picher, Vice-Chairman and Board Members C. G. Bourne and B. K. Lee.

APPEARANCES: Maurice A. Green. James Forster. Eric Mc Lean and Tony Bulson for the applicant; R. C. Filion, M. Easson, S. G. Chapman and D. Disney for the respondent.

DECISION OF M. G. RICHER, VICE-CHAIRMAN; July 24, 1980

1. This is an application under section 63(2) of The School Boards and Teachers Col­lective Negotiations Act, 1975 (popularly known as "Bill 100" and hereinafter referred to as the Act). The applicant, (hereinafter referred to as "the Federation") is the bargaining agent of all high school teachers employed by the York County Board of Education. It has applied for a declaration that the Board of Education unlawfully locked the teachers out of its high schools in September of 1979. The complaint also requests that the Board order the Board of Educa­tion to compensate all of the teachers for wages lost as a result of the alleged unlawful lock-out.

2. The complaint is the outgrowth of a stormy bargaining relationship. In the spring of 1978 the Federation and Board of Education commenced negotiations to conclude a collective agreement for the academic year 1978-79. Negotiations continued through the spring and summer of th3t year. In the fall of 1978 a fact-finder was appointed pursuant to the Act. After the release of his report, the parties were still unable to reach an agreement and a mediator was further appointed to assist the parties in their negotiations in the late fall of 1978.

3. With the assistance of the mediator, negotiations continued through the winter and spring of 1978. There was still no success. After taking the necessary procedures under the Act, the teachers commenced a lawful strike on June 27, 1979. The strike took the form of a work to rule and was deliberately timed to coincide with the end of the academic year. The object was to cause minimal disruption to classes while maintaining pressure for a settlement before the re-opening o school in September.

4. Negotiations through the summer still did not produce a collective agreement. By this time the parties had agreed to negotiate a two-year agreement that would encompass the academic year 1979-80. While the work to rule would obviously have its greatest impact when classes resumed, it was also enforced during the summer. The Federation promulgated special rules for three professional activity days at the end of June. While teachers completed the sub­mission of marks for report cards, they did not do any administrative work such as time-tabling, administrative tabulation, or stuffing envelopes to get report cards mailed out. Apart from teachers who had already taken summer school jobs, teachers were to perform no work for or in the schools during the summer break. These rules also limited the amount of course preparation teachers were permitted to do. They could not, for example, engage in any ad­ministrative assistance or participate in the ordering of supplies and materials.

5. The rules established by the Federation for September were equally restrictive. These rules issued at the end of June and were therefore known well in advance by the Board of Education. They called for teachers to "teach as normally as possible in normally-scheduled classes" but not to do any other school-related tasks. For example, teachers were not to assign lockers, handle timetables, order supplies, take attendance, handle bus or insurance forms or attend any staff, department or committee meetings. Teachers were to do no extra-curricular activities, no distribution or collection of texts and no preparation or supervision except as might be done during regularly scheduled classes. They were to do no marking. They were not to enter the school until 15 minutes before the first class and were not to remain in the school beyond IS minutes after the last class. Being aware of these rules, in the face of an ongoing stalemate toward the end of August, the Board's trustees took steps to implement counter measures.

6. Faced with a lawful strike in the form of a work to rule, the Board of Education, subject to certain procedural requirements under the Act, was entitled to lock out the teachers or declare a state of lock-out to exist. Section 69 of the Act provides, in part, as follows:

"(1) Where a lawful strike takes place against a board, the board may lock-out or declare a state of lock-out to exist against all members, other than principals or vice-principals, of the branch affiliate that represents teachers engaged in the strike.

(2) No board shall lock out or declare a state of lock-out to exist or close a school or schools unless and until the proposal of the branch affi­liate in respect of all matters agreed upon by the parties and in respect of all matters remaining in dispute between the parties last received by the board has been presented to a meeting of the board in public session.

(3) Except as provided in subsection I, a board shall not lock out a teacher."

7. The Board could also close the schools, without invoking a lock-out, if it had reason to believe that the safety of students, the security of school buildings and equipment, or the general operation of the schools were substantially threatened as a result of the strike. In this regard, section 69 of the Act also provides:

"(4) Where a lawful strikes takes place against a board, the board may close a school or schools where the board is of the opinion that,

(a) the safety of students may be endangered;

(b) the school building or the equipment or supplies therein may not be adequately protected during the strike; or

(c) the strike will substantially interfere with the operation of the school.

(5) A teacher shall not be paid his salary in respect of the days on which,

(a) he takes part in a strike, other than a strike as defined in subclause ii of clause I of section 1;

(b) he is locked out; or

(c) the school in which he is employed is closed pursuant to sub­section 4."

8. Against that background, the Board of Education met on Monday, August 27, 1979. In public session it considered and rejected the teachers' proposal then outstanding for the terms of a collective agreement. It then passed a resolution to lock the teachers out in the event that a memorandum of agreement should not be executed before the opening of school on September 4, 1979. The resolution of the Board was as follows:

"Part I

Resolved that pursuant to "An Act Respecting the Negotiation of Collec­tive Agreements between School Boards and Teachers (1975 07)" section 69(1), The York County Board of Education having considered in public session the proposal of District II, OSSTF in respect of all matters agreed upon by the parties and in respect of all matters remaining in dis­pute between the parties as presented in Form 7 of The Education Rela­tions Commission dated 1979 08 02 reject the teachers' proposal.

Part II

Whereas the rules as outlined by OSSTF are in contravention to the duties of a teacher as outlined in The Education Act and Regulations and whereas The York County Board of Education is convinced that to try to conduct regular programs under these circumstances is:

(1) dangerous to the safety of the students;

(2) unfair to the students in that a final solution will be delayed;

(3) divisive of the teaching staff since there are varying degrees of support for the present strike and

(4) unfair to the taxpayers in that full salaries must be paid for less than full service

Be it resolved:

That The York County Board of Education declare that all members of District II OSSTF (except Principals and Vice-Principals) are locked out effective 1979 09 04 at 0800 hrs, unless a memorandum of agreement is signed before that time.

9. Negotiations continued through the week of August 27, 1979. By Friday, August 30, all issues dealing with the content of the collective agreement were agreed upon. While the monetary terms were not settled, the parties jointly resolved to send those issues to arbitration. There was, however, one outstanding and very contentious issue. Before signing any memo­randum of agreement, the Board of Education insisted that the teachers take whatever steps necessary to eliminate the impact of the work to rule between the opening of classes on Sep­tember 4, 1979 and ratification of the agreement, then scheduled for September 6, 1979. The Board was adamant that the schools should not open, even after a tentative settlement, under the extreme restriction of the work to rule that was then in effect. The Federation, on the other hand, was equally adamant in its refusal to either remove or modify its sanction pending ratifi­cation of the memorandum of agreement by the teachers.

10. That single issue was the subject of a long and difficult week-end of negotiation be­tween the parties. With the assistance of the mediator the bargaining committees of both sides worked on the issue over the entire Labour Day holiday. Finally, on the evening of Monday, September 3, 1979, a memorandum of agreement was signed. The settlement came only after the teachers made a dual undertaking. Throughout the week-end the position of the teachers had been that the Federation negotiating team did not have the authority to end the work to rule and that only the teachers themselves could revoke it. As a way of resolving the impasse they gave the trustees of the Board of Education a verbal assurance that a meeting of the teach­ers would be held after school on September 4, 1979 to consider the status of the work to rule. They further assured the trustees that the opening day of school would be "as normal a day as possible under the circumstances".

11. The Board accepts the evidence of the Board of Education that its negotiators took the teachers' statement as an undertaking that the work to rule would be modified or con­ducted in such a way as not to interfere unduly with the operations of the schools on opening day. The trustees also believed that at the end of the opening day the body with the authority to amend or end the work to rule, the teachers themselves, would do so at a meeting called spe­cially for that purpose. But that was not to be.

12. The next day events took a different turn. With the memorandum of agreement signed, the Board did not implement a lock-out. The high schools opened, but the teachers continued to observe the full work to rule according to the general terms of the Federations’ rules. Teachers entered and left the schools 15 minutes before and after the scheduled school day. They did no administrative work. While there were some slight exceptions from school to school, in general there was no taking of attendance, no supervision other than in scheduled classes, no handing out of textbooks or assigning of lockers, nor any extra-curricular activity by the teachers. The work to rule was in full force.

13. The teachers' meeting held by the Federation at the end of the school day did not change the situation. All that resulted from that meeting was a single resolution, in the follow­ing terms:

"That District 11 advise the Board that its members are permitted to break the work to rule sanction in cases where there is an immediate, ap­parent jeopardy to the safety of a student or students."

14. Understandably the developments of that day had a strong and immediate impact on the trustees of the Board of Education. That evening they met in closed session. Through the Director cf Education they received reports of how the day had gone in each of the Board's high schools. The reports, submitted in writing, were made by supervisory officers assigned to monitor the schools during the opening day. Several of the officers were also present at the meeting to report orally on what they had found. Their reports disclosed that the day had been, to all outward appearances, fairly normal. Teachers were in their classrooms and teaching was going on without undue disruption. There were the usual opening day lines at guidance offices for students requiring adjustments to their timetables. The work to rule did not create any special chaos in the area, however, largely because the bulk of the students in the system had been pre-registered prior to the beginning of the academic year.

IS. While things went fairly smoothly, there was a negative side to the ledger. According to the reports in the hands of the trustees, and as the evidence before this Board confirmed, there was little or no administrative work done by teachers. Teachers did not take attendance, did not perform supervisory duties in hallways, study halls, or cafeterias, and did not perform normal opening day tasks such as helping students with their timetables or distributing lock­ers. There were no staff meetings scheduled or held, largely because the principals of the various high schools had been instructed during the course of the summer that in the event of work to rule, they should not schedule activities or make demands upon teachers that would force the teachers to break the Federation's rules. As a result of the work to rule the day was not as full and productive as it otherwise would have been. The degree of disruption was not enormous, however, and much of the administrative burden was fairly smoothly discharged because of the Board's own advance planning. A key factor was the level-headed attitude and extra administrative work of principals and vice-principals, who were not themselves parti­cipants in the strike, as well as the efforts of the administrative and secretarial staff of the high schools.

16. Although the Board of Education emerged relatively unscathed from the day's events, the predominant feeling of the trustees at day's end was anger aimed at the teachers in general and at their negotiators in particular. This Board had the benefit of a verbatim tran­script of the closed meeting of the Board of Education that evening. Although the trustees dif­fered to some degree in what they felt should be done in response to the continued work to rule, virtually all o F them expressed a personal sense of anger and betrayal. They believed, after the settlement of the previous day, that the teachers' meeting of the afternoon of the fourth was in­tended, according to the undertaking of the teachers' negotiators, to lift or modify the work to rule pending the vote to ratify the settlement on Thursday, September 6. That did not happen. In fact, at the teachers' meeting a proposal from the floor that the work to rule be lifted was declared out f order. Neither cessation nor modification of the work to rule were put to the membership at the meeting. That development, communicated to the trustees at their meeting that evening, caused, predictably, a hostile reaction.

17. All the Board of Education got from the teachers' meeting was a motion to the effect that teachers could intervene in the event of any immediate apparent danger to students. This the trustees saw, with justification, as a "motherhood motion" in fact no different than the existing Federation rules. By the rules promulgated at the beginning of the work to rule the Federation had instructed teachers that they could intervene in extra-classroom situations "where safety considerations or vandalism dictate". The trustees viewed the Federation's mo­tion, as they reasonably could in all the circumstances, as an instrument of deliberate decep­tion by the teachers.

18. At the outset of the closed meeting one of the trustees moved that the teachers be locked out. At this point, to be examined in greater detail below, events took a crucial turn for the Board of Education. The trustees were advised that technically they could not lock out the teachers. They believed that they could not then do that without considering and rejecting the teachers' final offer in a public session of the Board. They then decided, since they already had an agreement in principle, that the only course of action open to them under the legislation was to close the schools pursuant to section 69(4) of the Act. After an extensive debate the Board of Education passed the following motion by a majority of 16 to 3, one trustee being absent.

"Whereas the secondary schools are under a lawful strike by District II OSSTF and whereas in the opinion of the Board the strike is substantial­ly interfering with the operations of the schools,

Resolved that The York County Board of Education declares all second­ary schools closed to be effective 0800 hours September 5, 1979 in accor­dance with "An Act Respecting the Negotiation of Collective Agree­ments between School Boards and Teachers" section 69(4)(c) which reads:

'Where a lawful strike takes place against a board, the board may close a school or schools where the board is of the opinion that... the strike will substantially interfere with the operation of the school.'

And that the schools shall remain closed until the tentative agreement is ratified by both parties."

19. The Board's trustees also passed a motion cancelling a salary payment which the teachers would in the normal course have received on the Friday of that week. While the Fede­ration alleged that this was a move calculated to bring further pressure on the teachers, the evi­dence is clear that the Board had to pass the motion. Under the Act it was not permitted to pay the teachers for the time they would not be in the schools as a result of a lock-out or closing un­der section 69 of the Act. The Board had planned for a lock-out from late August and had pro­grammed its computerized payroll accordingly. Once the memorandum of agreement was signed at the last minute the lead time required to correct the computer didn't allow the Board to reverse its lock-out payroll arrangement and pay the teachers according to the normal schedule. In other words, by its motion on the payment of salaries the Board was only ratifying an irreversible administrative step initiated at a time when it anticipated a lock-out. Unfortu­nately the Board of Education apparently saw no reason to explain the reason for the with­holding of salaries to the teachers or their representatives.

20. The next morning all of York County's high schools were closed. They remained closed for two days, until the morning of Friday, September 7, 1979, following the ratification of the memorandum of agreement by the teachers on Thursday evening. The teachers were not paid for the two days.

21. The Federation submits that the closing of the schools was an unlawful lock-out. It argues firstly that it was not a closing within the meaning of section 69(4) of the Act. It main­tains that the Board was not in fact motivated by a belief that two more days of work to rule would "substantially interfere with the operation of the school(s)" as it must before it can in­voke the provisions of section 69(4)(c) of the Act. It submits that the school closing was a retal­iatory measure aimed at putting pressure on the teachers and bolstering the present and future bargaining position of the Board of Education. The Federation's position is premised on its belief that the Board was not legally entitled to lock out its high school teachers on September S and 6, 1979. It therefore submits that the Board's purported closing of the schools was in fact an unlawful lock-out.

22. A preliminary but crucial question is whether under the provisions of the Act the Board of Education was in a position to lock out its teachers lawfully on September 5 and 6, 1979. Clearly the trustees did not then believe that they could. They therefore purported to act under a provision of the Act other than the lock-out provision. But if, in fact, the Board of Education was at that time entitled to lock the teachers out of its high schools, the fact that it imposed a lock-out in the guise of closing the schools under section 69(4)(c) of the Act would not make the lock-out unlawful. It is therefore necessary to determine first whether, when it closed the schools, the Board of Education was entitled to lock its high school teachers out.

23. Section 69 of the Act requires that two conditions be met before a board of educa­tion can lock-out its teachers. The first, imposed by subsection (I) of section 69, is that there must be a lawful strike in effect. In this the Act differs from most collective bargaining statutes that regulate the right to strike or lock out. Normally in Canadian collective bargaining schemes either party is free to initiate the use of economic sanctions, be it strike or lock-out, once certain mediative processes have been exhausted. The power of an employer to lock out its employees does not normally depend on the initiations of strike activity by the employees. It does, however, under the act that regulates collective bargaining for teachers.

24. In framing the statute the Legislature sought to balance the desirability of collective bargaining for teachers against the need to protect the interests of the public, and students in particular. It therefore established and elaborate set of procedures that must be exhausted be­fore teachers can invoke a strike. These include formal notice to bargain, fact-finding and the publication of a fact-finder's report, as well as supervised votes among teachers conducted by the Education Relations Commission on both a Board's final offer and the decision strike. (See, generally, Downie, Collective Bargaining and Conflict Resolution in Education (Indus­trial Relations Centre, Queen's University at Kingston, Research and Current Issues Series No. 36 at pp. 81-2)). The procedures under the Act reflect a twofold purpose: to keep the public informed about the issues in what is, after all, a public interest dispute, and to channel the parties so as to maximize the possibilities of a negotiated settlement.

2S. School board lock-outs were not possible before the passage of the Act. Under The Education Act, 1974, boards of education were statutorily required to keep their schools open without interruption. That is why the provision that boards may lock out or close their schools under section 69 of the Act is made to operate, according to subsection S, "notwithstanding any provision of The Education Act, 1974". But in extending to boards of education the right to lock out, the Legislature clearly intended, in the obvious interest of students, that the lock­out should be a reactive mechanism that can be invoked only in the event that strike action has begun.

26. In this case that condition was clearly met. "Strike" as defined in section l(l)(ii) of the Act includes a work to rule. When the Board allegedly locked out its teachers illegally on September 4, 1979 the teachers had been engaged in an uninterrupted work to rule since June 28. It was still in force on the opening day of school, September 3, 1979. The first condition precedent to a lawful lock-out was therefore satisfied.

27. The second condition that must exist before a board of education can lock out its teachers is that its trustees must have been presented, in public session, with the proposal of the teachers. An obvious purpose of this provision is public accountability. Negotiations often go on behind closed doors. Section 69(2) of the Act insures that before a lock-out can be invoked the contract that would satisfy the teachers and avoid the conflict must be made known to all of the trustees and the public that elects them. This statutory precaution also gives teachers an independent way of knowing the details of their own negotiating committee's position. The requirement that public consideration be given to the teachers' proposal before they can be locked out is therefore in keeping with the twin themes of informing the public and maxi­mizing the pressures for responsible bargaining and settlement.

28. The conditions that a strike be in effect and that the teachers' proposal be publicly considered are the only conditions imposed by the Act before a board of education can lock out its teachers. Both of those conditions were met when the high schools of York County were closed on September 4, 1979. At that time the teachers were continuing a lawful work to rule begun in June. The trustees of the Board of Education had, in public session on August 27, 1979, considered and rejected the contract proposal of the teachers that was then outstanding.

29. It is not disputed that once the right to lock out vests in a board of education it can­not be taken away unilaterally by the teachers. In other words, the teachers cannot undo the legality of a lock-out by submitting new proposals to their board of education and arguing that these must again be considered in public session before a lock-out can continue. The Act ope­rates in a way that balances the resort to sanctions by both parties. Once the conditions pre­cedent are met, a board of education's right to implement and continue a lock-out endures, no less than the right of the teachers to continue their strike, until a collective agreement is con­cluded. In this case when the Board of Education closed its high schools a collective agreement was not concluded. There could be no collective agreement until the memorandum of agree­ment signed on September 3, 1979 had been ratified by both parties.

30. The Federation maintains that in this case the right of the Board of Education to lock out its teachers under the Act nevertheless ended prior to the alleged lock-out of Septem­ber 4, 1979. It submits that the Board of Education, as a statutory body, can only act upon the motion of its trustees. According to the teachers, when the Board of Education framed its lock-out motion as it did on August 27th, it dealt itself out of the ability either to initiate or continue a lock-out once a memorandum of agreement was reached because the operation of the lock-out motion was conditional on there not being a memorandum of agreement. Once the tentative agreement was signed on September 3, 1979 the Board was, according to the teachers, precluded from locking them out. In other words, the teachers argue that because of its own internal motion the Board of Education lost its ability to lock the teachers out under The School Boards and Teachers Collective Negotiations Act at any time after September 3,

32. We cannot agree. The legality of a strike or lock-out under the Act is strictly a ques­tion of its timeliness. The Act concerns itself with the legality of a strike or lock-out only in the sense that neither sanction can be invoked until the procedures in the Act have been exhaust­ed. The Act does not purport to regulate or condition the legality of a strike or lock-out on adherence to structures and procedures internal to either a board of education or a federation branch affiliate. As long as the conditions in the Act are met, a branch affiliate can no more ob­ject to the legality of a lock-out on the basis of the insufficiency of an internal board motion than a board of education can challenge the legality of an otherwise lawful strike on the insuf­ficiency of internal branch affiliate procedures. The fact that the York County Board of Edu­cation framed its lock-out motion as it did does nothing to limit its right to impose a lock-out under the Act.

33. The Board's motion could arguably be construed as an undertaking, during bar­gaining, not to lock out its teachers if a memorandum of agreement was reached. A subsequent dishonoring at that undertaking might, given reliance and reasonable conduct by the Federa­tion, be the basis of an allegation of bargaining in bad faith. But that is not an issue that is either before this Board or within its jurisdiction. It is entirely reserved to the Education Rela­tions Commission (see s. 61(1)(f) of the Act).

34. For the foregoing reasons we must conclude that on September 4, 1979, when the Board of Education of York County allegedly locked out its high school teachers, it was law­fully entitled to do so. On that basis this complaint must be dismissed.

35. We are prompted by the evidence to make a further comment. Even if we had con­cluded that the Board did not have the right to lock out its teachers, we would nevertheless have dismissed this complaint on alternate grounds, based on the conduct of both parties. The teachers and Hoard of Education involved in this complaint are not new to bargaining war­fare. The checkered history of their collective bargaining relationship is well recorded. In early 1974 they faced off in a bitter and costly strike that left 14,000 students without classes for forty-three days. That dispute, ultimately resolved by the passage of special legislation in mid-March of 1974, was among the most visible of a number of teacher-board confrontations in Ontario that led to the passage of the Act. (See Downie, Collective Bargaining and Conflict Resolution in Education, supra, pp. 42—5).

36. It appears from the evidence before us that both parties have some maturing to do. Their conduct towards each other demonstrates, on both sides, a greater interest in legal and bargaining finesse than in building a sound relationship based on mutual respect.

37. Having closely reviewed the verbatim transcript of the trustees' meeting, we must accept the submission of counsel for the Federation that the decision of the Board of Educa­tion to close the schools was not motivated by an opinion of its trustees that what then looked like a possible two day continuation of the work to rule would substantially interfere with the operation of tie schools. We accept that a number of the trustees did have a genuine concern that an extended work to rule could prove intolerable from a pedagogical point of view. But that is not what moved them when they decided to close the schools for two days. The predo­minant theme in the trustees' closed meeting was an exploration of how to respond to the teachers, how to show them, the students, and the public who was in charge. In our view that was a natural and legitimate reaction by a group of officials elected to discharge a public trust. But this Board cannot accept the submission of the Board of Education that its predominant motive was a purely administrative and pedagogical concern for the operation of the schools for the two days in question.

38. The trustees had before them written reports that overwhelmingly showed, as the evidence before this Board confirmed, that the first day of school had gone smoothly. Princi­pals, teachers and students were demonstrating obvious co-operation and control. There was then no rational basis to expect any substantial difference in the next two days. At the meeting there was speculation by one of the supervisory officers that difficulties could develop as time passed. That was essentially a recognition that there could, in the next two days, be isolated cases where the occasional opportunist among the students might take advantage of the situa­tion. In our view, that cautionary note could not reasonably be seen, and was not in fact seen, by the trustees as a prediction of widespread disturbances amounting to a substantial inter­ference with the operation of the schools within the meaning of section 69(4)(c) of the Act.

39. To determine what motive was predominant it is necessary to separate, as near as possible, the concerns that the trustees had. If we ask ourselves whether they would have closed the schools if it meant that the teachers would receive full pay for the two days, we are satisfied that they would not. They were primarily reacting to a bargaining ploy and not to a perceived educational threat. The argument of the Board's counsel that the lock-out was prompted by a concern that the work to rule might last longer than two days in simply not true to the evidence. In the closed meeting no one expressed concern that with the schools open the teachers might not ratify the agreement within two days. The immediate concern, openly ex­pressed, was whether closing the schools could precipitate a teacher backlash that would jeopardize ratification.

40. In a significant piece of testimony one trustee expressed a rationalization of the Board of Education decision that captures the gist of the argument made by his counsel. He stated that he and other trustees viewed their decision as an administrative and educational measure that yielded incidental, but secondary, collective bargaining advantages, which the Board of Education was of course happy to accept. While we do not challenge the altruism of that particular witness, this Board must, when assessing the critical motive of the entire group, listen to the whole symphony. In our view the prevailing theme was the opposite: the majority of the trustees voted to close the schools as a means of responding to the teachers; a secondary concern was whether the Board of Education's action would also be valid and defensible on pedagogical and administrative grounds. While it can sometimes be difficult to dissect and analyze the thoughts and motives of a public body like a Board of Education, in this case it is not. On the preponderance of the evidence this Board must conclude that the decision of the majority of the trustees to close the schools was primarily and essentially intended as an instru­ment of retaliation in bargaining with the teachers.

41. We would, therefore, find that the action of the Board of Education was a lock-out and not a closing of the high schools within the meaning of section 69(4) of the Act. Even if it was an unlawful lock-out (a conclusion we expressly do not make for the reasons elaborated above) we world not, given the conduct of the Federation, make a declaration to that effect under section 68(1) of the Act nor make any remedial order as to wages lost under section 68(3).

42. This Board's authority to grant a declaration and compensation in the event of an unlawful lock-out under the Act is discretionary just as it is under the like provisions of The Labour Relations Act. When either an employer or employees come before the Board request­ing extraordinary relief in the event of an illegal strike or lock-out, before granting any relief the Board must look to the whole of the circumstances, including the conduct of the complaint. Where the party requesting relief has so conducted itself as to unduly provoke the act of which it complains, there may be no good industrial relations reason to grant it relief. On the con­trary, there can be ample policy reasons not to. Our discretionary remedies should not be meted out in a way that unduly shelters a complainant by absolving it from the consequences of its own excesses. (Northdown Drywall and Construction Limited, [1972] OLRB Rep. June 666; and see also Canadian Elevator Manufatcturers, [1975] OLRB Rep. Nov. 868 at 872-73).

43. "Excessive" is a fair word to describe the attitude and conduct of the Federation after its tentative agreement with the Board of Education was reached on September 3, 1979. We cannot accept the evidence of the Federation's representatives that they had no alternative but to keep the work to rule in full force until the tentative agreement was ratified. The teach­ers could have been concerned, as they testified they were, that if they had ended their strike by completely lifting the work to rule before ratification and ratification then failed, they would have to go through the supervised vote procedures and notice provisions of the Act again be­fore resuming any strike action.

44. In cur opinion, however, those concerns are more legalistic than realistic. They come as an after the fact rationalization of an ill-advised bargaining move. The teachers knew, or should have known, that they could wind down their work to rule to a level that would tech­nically maintain their strike while inflicting minimal interference of the schools and students until the agreement was ratified. They could have given the Board of Education written notice to that effect. The Federation has already made a number of adjustments in the rules to accom­modate the end of the school year in June, the summer school programme and the reopening of school in September. The teachers chose instead to play hardball. After a week-end of in­tense negotiations dedicated entirely to the work to rule issue, culminating in their under­taking, they knew, or should have known, that prolonging the full work to rule and failing to consider any real alternative at the teachers' meeting of September 4, 1979 must be taken as a slap at the Board of Education. The "safety motion", evidence that the teacher negotiators knew they had to come up with something, could only add insult and confirm the trustees in their conclusion that they had been misled.

45. There was no discernible collective bargaining purpose in the teachers' tactic of con­tinuing to inflict a full work to rule after an agreement in principle had been reached. At that delicate time between making and ratifying a tentative agreement signs of goodwill and co­operation would have been especially important. Having chosen then to take a provocative stance the Federation should not now be heard to complain because the Board of Education reacted in kind. We would therefore not have exercised our discretion to grant a declaration to the Federation or compensation to its members.

46. For the purposes of clarity, our conclusions may be summarized as follows:

(1) When the York County Board of Education closed its high schools on September 4 and 5, 1979 its action was not a closing within the meaning of section 69(4)(c) of the Act. It was a lock-out.

(2) At that time, however, the Board was entitled to implement a lock­out, the necessary conditions in section 69(1) and (2) of the Act having been entirely met. The sufficiency of the Board's internal procedures does not affect its rights under the Act. The lock-out was lawful.

(3) Even if we had concluded that the lock-out was illegal, we would not have so declared. The teachers took an unduly hard line in con­tinuing a full work to rule after a settlement was tentatively reached. The lock-out was a predictable response to the teachers' actions and they should therefore not have the endorsement or benefit of de­claratory or monetary relief from this Board.

DECISION OF THE BOARD MEMBER BRUCE K. LEE:

1. The decision of Vice-Chairman M. Picher accurately sets out the evidence received by the Board during several days of hearings in this matter, and I do not disagree with his basic findings of fact. However, my interpretation of those facts differs in many respects from his.

2. The teachers, in order to resolve the impasse which had arisen during the final ne­gotiating sessions, gave an undertaking to the trustees that they would meet after school on September 4th, 1979 to consider the status of the work to rule sanctions which had been im­posed. They also stated that the opening day of school would be "as normal a day as possible under the circumstances." On the evidence it is clear that little, if any, administrative work was performed on the first day of school but, as the Vice-Chairman's decision notes, that day's operation went fairly smoothly. Furthermore, the teachers did meet to consider lifting the work to rule sanctions and did pass a resolution which purported to ease those sanctions. Thus, in my view, the teachers had not contravened the undertakings they had given to the trustees.

3. I agree with Vice Chairman Picher in holding that the action taken by the York County Board of Education was unquestionably a lock out. The Board's primary motive in closing the schools after the first day, was to punish the teachers for what the trustees viewed as a breach of the undertaking which had been given to them prior to the opening day of school. In my opinion, the teachers lived up to their undertaking, that is they met after the first day of school to consider the work to rule sanctions and worked on the first day of school in a fashion which was as normal as possible in the circumstances, that is, the work to rule sanctions were still in place, and in any event, the opening day of school was not considered a normal teaching day.

4. While it may well be that the lock-out of the teachers was done in accordance with the provisions of the Act, if the lock-out was in fact illegal, I would have no hesitation in making such a declaration. The teachers were understandably concerned that a removal of the work to rule sanctions prior to the ultimate settlement of their agreement may have jeopardized their legal ability to reintroduce those sanctions if no agreement had been concluded or rati­fied. Furthermore, the evidence relating to what had taken place during the meeting of the trustees leads to the inescapable conclusion that the trustees, by closing the schools and lock­ing out the teachers, were interested in getting back at the teachers for continuing their work to rule sanctions. In my opinion, the actions of the school board were uncalled for. Had the lock­out been untimely and illegal. I would have had no hesitation whatever in making such a declaration.

DECISION OF BOARD MEMBER C. G. BOURNE:

The partial dissent of Mr. Bourne will be given in writing at a later date.