[1981] OLRB Rep. January 113
1894-80-U Florence M. Casey, Applicant, v. Ontario Secondary School Teachers Federation (Sault Ste. Marie Division) and Ontario Secondary School Teachers Federation, Respondents.
BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members J.A. Ronson and W.F. Rutherford.
APPEARANCES: F.M. Casey for the applicant; and M.A. Green, J. Forster and J. Agnew, for the respondents.
DECISION OF THE BOARD; January 20, 1981
The name: "(1) OSSTF Sault Division and (2) OSSTF Provincial Office" appearing in the style of cause of this application as the name of the respondent is amended to read: "(1) Ontario Secondary School Teachers Federation (Sault Ste. Marie Division) and (2) Ontario Secondary School Teachers Federation".
This is an application under section 79 of The Labour Relations Act in which the complainant, Florence M. Casey, contends that the respondents have contraved section 60 of the Act. The provisions of The Labour Relations Act which are material to this application read as follows:
Section 60: A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Section 2(f): This Act does not apply to a teacher as defined in The School Boards and Teachers Collective Negotiations Act, 1975, except as provided in that Act.
The respondent, Ontario Secondary School Teachers' Federation ("OSSTF"), through its local branch affiliate, is the statutory bargaining agent for the Secondary School Teachers employed by the Sault Ste. Marie Board of Education ("the employer"). Ms. Casey is one of the teachers employed by the employer, holds a permanent contract in the form prescribed by The Education Act, and is a member of the respondent's local branch affiliate. There is a subsisting collective agreement between the respondent OSSTF and the employer which applies, inter alia, to the complainant.
The origin of the present complaint is a dispute between Ms. Casey and her employer concerning the interpretation of the seniority and staffing provisions of the collective agreement. This dispute prompted Ms. Casey to file a grievance which was processed through several steps of the grievance procedure. A board of arbitration was selected to hear and determine the matter, but prior to the hearing, the OSSTF decided not to proceed to arbitration and withdrew the grievance. Ms. Casey appealed to the senior officials of the OSSTF, however, after considering her position, they declined to intervene.
In view of the preliminary argument raised by the respondent(s), the Board did not consider it necessary to entertain evidence concerning the reasons why the local and provincial officials declined to proceed to arbitration with Ms. Casey's grievance. It suffices to say that there still remains a dispute between Ms. Casey and her bargaining agent concerning the merits of her grievance, the intended meaning of the language in her collective agreement, and the advisability of proceeding to a board of arbitration for a resolution of this issue. Ms. Casey urges this Board to inquire into her complaint, on its merits, and if we find a contravention of section 60, to make a remedial order essentially involving a direction that the respondent OSSTF proceed to arbitration with her grievance. The respondent(s) contend that neither The Labour Relations A ct; nor The School Boards and Teachers Collective Negotiations Act give this Board jurisdiction to undertake that enquiry or entertain Ms. Casey's complaint.
Section 60 of The Labour Relations Act was enacted in 1971, and involves the recognition by the Legislature that the statutory right to act as the employees' exclusive bargaining agent should carry with it a concomitant obligation to fairly consider the rights and interests of individual members of the bargaining unit — whether or not they are members of the union. Section 60 is an attempt to achieve a balance between the interests of the individual and the interests of the collectivity, and it enshrines legislatively the now famous elaboration of the duty of fair representation originally framed by the Supreme Court of the United States in Vaca v. Sipes (P67) 386 U.S. 1971— that a trade union is prohibited from acting in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any of the employees in the bargaining unit". [For some of the background preceding the passage of section 60, see Carr, The Development of the Duty of Fair Representation in Ontario (1968) 6 Osgoode Hall Law Journal 485; and Paliare, Tilting Against the Windmills: The Individual's Right to Arbitration (1970) 8 Osgoode Hall Law Journal 45]. In the United States, the Courts have developed an elaborate jurisprudence with respect to the duty of fair representation but, in Canada, early common law developments (see: Fisher v. Pemberton et al (1970), 1969 CanLII 726 (BC SC), 8 D.L. R. (3d) 521) have been superseded by statute and the matter has generally been dealt with by statutory labour relations tribunals.
Provisions analogous to section 60 are common in most provincial jurisdictions. In Ontario, an explicit statutory duty of fair representation can also be found in section 28 of The Crown Employees' Collective Bargaining Act, S,O. 1972,c. 67, and section 77 of The Colleges' Collective Bargaining Act, S.O. 1975, c. 74. The difficulty faced by the complainant in this case is that there is no equivalent provision in The School Boards and Teachers Collective Negotiations Act, S.O. 1975, c. 72; and because of the section 2(f) of The Labour Relations Act, the statutory duty and remedial machinery provided in The Labour Relations Act are not available to her. Accordingly, assuming, without finding, that the complainant would be able to establish a breach of the section 60 duty, The Labour Relations Act does not give this Board jurisdiction to enquire into the matter or grant her relief.
Does The School Boards and Teachers Collective Negotiations Act provide a jurisdictional basis for entertaining the complainant's case? After perusing the provisions of that Act, we are satisfied that it does not. As we have already mentioned, there is no express statutory duty of fair representation, nor is there any general provision similar to section 79 of The Labours Relations Act empowering this Board to enquire into a contravention of the Act and, if such contravention is established, to fashion a remedy. There is a limited role for the Board in respect of unlawful strikes and lock-outs and also in respect of certain penal provisions of the statute. (See section 78.) Persons or organizations which have contravened the statute are guilty of an offence punishable on summary conviction by a fine, and no such prosecution (in Provincial Court Criminal Division) can be launched without the consent of the Board. However, The School Boards and Teachers Collective Negotiations Act does not contain a provision paralleling section 79 of The Labour Relations Act or granting this Board a similar broad remedial authority to rectify contraventions of the Act. Such provisions are of a substantial and substantive nature and we do not think that they can be "read in” or "implied" as the complainant urges us to do.
Our attention was directed to section 5 of The School Boards and Teachers Collective Negotiations Act which reads as follows:
A branch affiliate shall, in negotiations and procedures under this Act, represent all the teachers composing its membership.
Assuming, without finding, that the grievance/arbitration procedure prescribed by the collective agreement can be considered a "procedure under this Act", there is still a significant absence of any language concerning the quality or standard of representation to which the teacher organization must comply. There is simply no equivalent to section 60 of The Labour Relations Act, section 28 of The Crown Employees Collective Bargaining Act, or section 77 of The Colleges Collective Bargaining Act. Where a statutory duty of fair representation (framed on the Vaca v. Sipes model) has been part of the legislative landscape for some years and appears in express terms in a number of other labour relations statutes, it is difficult to conclude that section 5 was intended to create a similar obligation. And, in the absence of language similar to section 79 of The Labour Relations Act, it is equally difficult to find that this Board has a general remedial authority to rectify an alleged breach of the duty of fair representation.
- Having regard to the scheme of the Act as a whole, we are satisfied that The School Boards and Teachers Collective Negotiations Act neither imposes a statutory duty of fair representation, nor gives this Board the jurisdiction to enquire into such matters. Accordingly, this application must be dismissed.