The Board of Education for the Borough of Scarborough v. The Ontario Secondary School Teachers' Federation, 1983 CanLII 863

The Board of Education for the Borough of Scarborough v. The Ontario Secondary School Teachers' Federation

[1983] OLRB Rep. November 1889

0065-83-U The Board of Education for the Borough of Scarborough, Complainant, v. The Ontario Secondary School Teachers' Federation and others listed on Schedule "A", Respondents

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. D. Bell and L. Collins.

APPEARANCES: Barry W. Earle, Q. C., John W. Woon and F G. Plue for the complainant; Maurice A. Green, M. Richardson and M. Buchanan for The Ontario Secondary School Teachers' Federation, David Bloom for Patricia Thompson; H. Goldblatt, J. Farrell and A. Andoniadis for Andy Andoniadis.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN AND BOARD MEMBER J. D. BELL; November 8, 1983

1. This is a complaint under sections 89 and 92 of the Labour Relations Act arising from what the complainant contends was an unlawful strike. In the complainant's submission, the unlawful strike occurred when a number of summer-school principals, vice-principals and curriculum resource teachers resigned, en masse, from positions to which they had been appointed and which they had earlier accepted.

2. When this complaint was originally filed, the complainant sought relief against a number of namedprincipals, vice-principals, curriculum resource teachers, and classroom teachers, as well as against certain teacher organizations and their officials. However, following the release of the decision of the Board in a similar case involving the Ottawa Board of Education (Board File No. 2658-82-U), the complainant withdrew against the named classroom teachers; and having heard some of the evidence it also withdrew against Ms. Mildred Fortune, one of thecurriculum resource teachers. We are left then, with the allegation that what is described as a "mass resignation" by certain principals, vice-principals and curriculum resource teachers, constitutes an unlawful strike within the meaning of the Labour Relations Act. It is further alleged that this unlawful strike was encouraged, procured and supported by the officers of the Ontario Secondary School Teachers' Federation and its District 16 (Scarborough).

3. The arguments of the parties and the relief sought will be set out in more detail below. It will be convenient to begin by reviewing the circumstances giving rise to the present proceeding. For ease of reference the complainant, the Board of Education for the Borough of Scarborough will be referred to as "the employer" or the "Scarborough Board"; the Ontario Secondary School Teachers' Federation will be referred to as the "OSSTF"; District 16 (Scarborough) of the Ontario Secondary School Teachers' Federation will be referred to simply as "District 16", and the principals, vice-principals and curriculum resource teachers named as individual respondents will frequently be referred to, collectively, as "the resignees". All but one of the resignees are members of OSSTF and its District 16.

4. The Board notes the agreement of the parties that, for the purposes of this proceeding, the principals, vice-principals and curriculum resource teachers are"employees" within the meaning of the Labour Relations Act. We record this stipulation because, having heard the evidence, there is an argument to be made that the principals and vice-principals exercise "managerial functions" within the meaning of section l(3)(b) of the Act - whatever their status may be under the School Boards and Teachers Collective Negotiations Act. The Board also notes the following agreement of the parties with respect to the evidence adduced in this matter:

AGREEMENT AS TO EVIDENCE

For the purposes of this application and the submissions to be advanced on behalf of the applicant and the respondents, the parties, by their counsel, hereby agree as follows:

1. The evidence of David Bergson, Ron Hinzel, Peter Baker and John Saso will be regarded as generally representative of the evidence that would be given by the other principals and vice-principals referred to in paragraphs 15 and 16 of the within application were they called to give evidence, with the exception of Jack Hanna and Patricia Thompson.

2. As to the evidence of what was said at the meeting on March 8, 1983, by the respondent Andy Andoniadis regarding what would happen if the applicant did not accept the resignations that had been submitted, it is agreed that if the other principals and vice-principals at that meeting were called to give evidence, their evidence would be similar to the evidence of the respondents Bergson, Hinzel and Saso.

5. The employer and District 16 are parties to a collective bargaining relationship and a collective agreement established pursuant to the provisions of the School Boards and Teachers Collective Negotiations Act. That collective agreement is primarily concerned with the terms and conditions of employment of teachers employed during the regular day school programme, which runs from early September until approximately the end of May. The School Boards and Teachers Collective Negotiations Act does not apply to the employer's summer programmes, or to the employment relationships of teachers engaged to teach or administer those programmes. In consequence (and by default), these relationships fall within the purview of the Ontario Labour Relations Act. (See: Board of Education for the City of Windsor, [1978] OLRB Rep. July 699, and Ottawa Board of Education, [1983] OLRB Rep7. May 694.)

6. The parties do not dispute that the employment relationships in the Scarborough Board's summer programme are governed by the Labour Relations Act. They agree that the Labour Relations Act applies. They disagree about whether the named respondents, or any of them, have engaged in conduct which would be considered unlawful under that Act.

7. The fact that the Scarborough Board's summer school programmes are not governed by the School Boards and Teachers Collective Negotiations Act does not mean that they are of no concern to the teachers employed by the Scarborough Board. On the contrary, in these days of declining student enrollment, economic uncertainty, and income restraint, the Scarborough teachers have a realinterest in the work opportunities available during the summer. Over the years, District 16 has tried to negotiate preferred access to these jobs as well as a level of remuneration equivalent to what its members would be paid under the terms of the collective agreement. Since many of the credit courses offered during the summer are the same as those offered in the fall and winter terms, the Scarborough teachers' position is that they should have at least a right of first refusal in respect of these work opportunities, and that when they are employed during the summer they should be paid at a rate equivalent to what they earn when performing similar duties during the regular school year. In order to preserve its flexibility, the Scarborough Board has traditionally rejected both demands.

8. The most recent agreement between the Scarborough Board and District 16 was expected to expire on August 31, 1982. In January, 1982, District 16 served the employer with notice to bargain with a view to concluding a new collective agreement. Negotiations proceeded slowly, throughout 1982 and into 1983, and from the teachers' point of view, there was no satisfactory resolution of the issues involving the summer programme. The Scarborough Board was unwilling to concede preferential access or wage parity. This prompted the provincial executive of the OSSTF to issue what is commonly known as a "pink letter". The pink letter is dated February 24, 1983, bears the signatures of the President and General Secretary of OSSTF, and reads as follows:

INFORMATION BULLETIN TO THE MEMBERS OF THE ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION

BOARD OF EDUCATION FOR THE BOROUGH OF SCARBOROUGH

Re: Summer School 1983 and Night School Credit Courses 1983-84

1. The members of O.S.S.T.F. in Scarborough, District 16, and the O.S.S.T.F. Provincial Executive, have been unsuccessful in negotiating with the Board of Education for the Borough of Scarborough a satisfactory settlement of the assignment to, and remuneration for, Summer School 1983 and Night School Credit Courses 1983-84.

2. Consequently, the Ontario Secondary School Teachers' Federation membership is advised that teaching positions with the Board of Education for the Borough of Scarborough relating to Summer School 1983 and Nigh School Credit Courses 1983-84, are unacceptable.

3. Any O.S.S.T.F. members who apply for or accept employment with the Board of Education for the Borough of Scarborough for the above positions until further notice shall not receive support from this Federation in matters relating to contractual and/or professional difficulties until such time as the Provincial Executive of O.S.S.T.F. declares that the member may once again receive support. It is the duty of members under O.S.S.T.F. By-law 4, Section 2(1)(k), to refuse to accept employment described in this Information Bulletin.

THE ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION

"Malcolm Buchanan" "L. M. Richardson" President General Secretary

9. The purpose of the pink letter is obvious. It is a form of boycott designed to put pressure on the Scarborough Board to achieve a collective bargaining objective: preferential hiring for Scarborough teachers and higher salaries for those who teach in the summer programme. All OSSTF members in Ontario are urged to support this embargo. Those who do not, risk the imposition of sanctions. The "pink letter" enjoins members of the OSSTF not to apply for or accept positions with the Scarborough Board. It says nothing about the position of those who may have already applied for and accepted positions.

10. To mount a successful summer programme requires more than just teachers to teach the specified courses. It also requires an established complement or principals, vice-principals, and curriculum resource personnel to administer the programme and monitor the course content. In the ordinary course of things, these administrative personnel must be recruited and in place well before the summer programme gets underway. If the summer programme is to be successful - particularly in its early stages - the curriculum and administrative framework must be established well in advance. Traditionally, these positions have all been filled by teachers employed by the Scarborough Board, on permanent contract, in the regular day school programme.

11. Positions for summer school principals, vice-principals, and curriculum resource teachers, were advertised in the fall of 1982. Potential candidates were advised that applications should be submitted prior to November 15, 1982 to Ms. Alice McEachern, assistant superintendent of student and community services. Applications were received and a number of interviews were conducted.

12. The successful candidates were notified in writing. The letter of appointment sent to Peter Baker is typical of those sent to other successful applicants. Mr. Baker is a teacher at Wexford Collegiate and was to become the summer school principal at Stephen Leacock Collegiate Institute. His letter of appointment reads as follows:

This is to inform you that after careful consideration of your application you have been appointed to the position of Principal at Stephen Leacock Collegiate Institute Summer Day School, 1983.

Ms. Gail Darling of Sir Oliver Mowat Collegiate Institute has been appointed as Vice-Principal.

Mr. M. Roberts and Mr. Don Robb who were members of the selection committee will also be working with you to assist in the organization of your programs. In that connection a meeting will be convened early in the new year.

Yours truly.

13. During the interviews preceding the selection of the successful candidates, there was no detailed discussion about remuneration. The principals and vice-principals understood that they would receive an amount based upon what had been paid in the previous summer together with a percentage increase which was yet to be determined. Those like Peter Baker, who had worked in the summer programme before, may have been aware (as Baker was) that the salary would include both a basic allowance, and a weekly payment. The curriculum resource teachers understood that they would receive payment at an hourly rate of $19.00 per hour. However, no money was paid, or expected, prior to the commencement of the summer programme. Ron Hinzel testified that he thought that any administrative duties undertaken before the programme started were covered in the lump sum payments made periodically during the summer. Mr. Hinzel worked in the 1982 summer programme and was to be a summer school principal again in 1983.

14. It will be observed that the letters of appointment contemplate that preliminary organizational meetings in connection with the summer programme would begin early in the new year. They did. On Wednesday, January 19, 1983, Ms. McEachern met with Brian Punchard and Ron Fitton, the principals in the summer night school programme. Like the other principals, they shared the responsibility for the course selection, the revision of course descriptions, the preparation of promotional material, the hiring of secretarial and teaching staff, projecting student enrollment, the deployment of classrooms, and so on. These matters had to be resolved, or administrative procedures established to deal with them, well before the students began to register for the summer programme. For example, one of the matters to be discussed on January 19th (as Ms. McEachern noted in her memo advising Punchard and Fitton of the meeting) was the desirability of modifying the course offerings and related promotional material in light of the recent interest in computer-related courses. These and other matters were canvassed at the meeting. It was expected that Fitton and Punchard would apply themselves to the resolution of any problems which arose so that the programme for which they were responsible would be successful.

15. Nadeen Bender testified that following the confirmation of her appointment as a curriculum resource teacher (guidance) on February 3, 1983, she too began to prepare for her summer role. In particular, she was asked to set up a workshop for guidance teachers which would be conducted during the late spring, so that there would be uniformity in the criteria for enrollment in the summer remedial programmes. To this end, she met, twice, with Ed Moran, the principal at Birchmount Collegiate, whom Alice McEachern had suggested would help set up a committee to consider the workshop content. Ms. Bender also contacted a number of individuals with specific expertise to solicit their participation on the committee. Once again, this administrative work had to be completed prior to student registration and the actual commencement of the summer programme.

16. A similar picture emerges from a perusal of the minutes of meetings held on February 1, 1983 and March 1, 1983, and attended by the other principals, vice-principals and some of the curriculum resource teachers associated with the summer day school. Once more, there was a discussion of such matters as: the revision of registration forms, the modification of the calendar of course offerings, the rewriting of course descriptions, the selection of secretarial support staff, and the necessary documentation and procedures for hiring teachers - particularly those from "out-of-borough". Ad hoc committees were struck to perform some of these administrative tasks (such as rewriting course descriptions), and in each case a provision was made for further discussions. For example, there was to be a further meeting in April to review the application forms of teachers who had applied to work in the programme.

17. We need not multiply the examples or review the evidence in detail. That evidence clearly establishes that the respondent principals, vice-principals and curriculum resource teachers had undertaken duties in connection with their appointment to positions in the summer programme well before their mass resignation.

18. The pink letter of February 24, 1983 was not entirely unexpected. Negotiations had reached an impasse and on February 22nd, Andy Andoniadis, the President of District 16, circulated a memo about it to the District membership. That memo entitled "From the Office of The President, District 16 OSSTF" includes the following paragraph:

INFORMATION BULLETINS (PINK LETTERS) ANNOUNCED

It was announced at Provincial Council that the Provincial Executive has approved the issuance of "Pink Letters" on Night School/Summer School Credit Courses on the Ottawa Board of Education and the Durham Board of Education. Furthermore, the Provincial Executive has approved, this week, the issuance of an Information Bulletin on the Scarborough Board of Education concerning Summer School Credit Courses 1983 and Night School Credit Courses for the school year 1983-84. As the Metro Districts are in Takeover, the date of issuance of the Information Bulletin will be determined by the Takeover Chairman. It will be issued in the very near future, depending on the Board's response to our request at the negotiations table.

Teachers who have applied or accepted positions in these programs are forewarned that they will be prohibited by OSSTF by-laws from working in Night School or Summer School, when the Pink Letter is issued. If you require further information, phone the District 16 Office.

[emphasis added]

According to Andoniadis, the boycott applied not only to teachers who had applied for positions in the summer programme, but also to individuals - like the principals, vice-principals and curriculum resource teachers - who had already accepted such positions. They were expected to "resign" - as they subsequently did. In a telephone conversation, shortly after the release of the pink letter, Andoniadis expressed the same opinion to John Saso, who was to be the summer principal of L'Amoreaux Collegiate.

19. For some of the respondents, the issuance of the pink letter was not an unwelcome event. The summer programme had been the focus of debate for some time, and in the summer of 1982, the District had been urged to "show some backbone", to "take a strong stand", and to "put some teeth" into its demand for preferential hiring and better pay for Scarborough teachers. John Saso, Ron Hinzel, and Peter Baker - summer principals at L' Amoreaux Collegiate, Midland Avenue Collegiate, and Stephen Leacock Collegiate, respectively, - all regarded the pink letter as a positive initiative which should be supported. Keith Hubbard, a curriculum resource teacher, was less enthusiastic. When asked why he had submitted his resignation, he testified that he thought the sanctions mentioned in the pink letter and the memo from Andoniadis were not worth risking. David Bergson, the summer school vice-principal at Midland Avenue Collegiate, was prepared to support the OSSTF's collective bargaining objective, but he too testified that he was initially concerned that if he did not resign he might face reprisals. As he put it, the threat of sanctions if he did not resign put him "between a rock and a hard place". It was only later, after his resignation letter had been submitted, that he learned that the OSSTF probably would not take action against those who chose not to resign.

20. The pink letter was a topic of some concern, both before and after its release, for (at least as interpreted by Andoniadis) it appeared to require the principals, vice-principals and curriculum resource teachers to repudiate a commitment which they had already undertaken. John Saso and Peter Baker decided that it would be useful to have a meeting of all of the individuals affected in order to discuss the matter as a group. Since there was another summer school organization meeting scheduled for March 1st, and since all of the principals and vice-principals were expected to attend, Baker decided that this would be an appropriate opportunity to discuss the pink letter. He approached Alice McEachern for permission to hold a "second meeting" to discuss "Federation business" after the administration meeting was completed. Ms. McEachern gave her consent. Efforts were then made to contact the principals and vice-principals by telephone to advise them of the second meeting and its purpose.

21. A day or two before the March 1st meeting, Saso spoke to Andoniadis once again, and obtained from him a suggested form of words for a resignation letter. That wording was ultimately used by most of the principals and vice-principals when they subsequently tendered their resignations. By this time, Saso had already decided to resign. So had Baker and Hinzel.

22. The second meeting on March 1st proceeded as scheduled. None of the officers of District 16 were present, nor was there any formal agenda or chairperson. However, Baker and Saso both sought to focus the conversations, and there was extensive discussion of the pink letter, the need to support the OSSTF bargaining position, the wording which should be used in a resignation letter, and the manner in which such letters should be distributed to the Scarborough Board.

23. Baker described the meeting as a process of "consensus building". Saso produced and circulated the suggested wording for a resignation letter which he had earlier received from Andoniadis, and explained that the Federation thought it was unwise to make any overt reference to the collective bargaining impasse - presumably to make it more difficult to conclude that those present were acting in concert or in accordance with a common understanding. The wording seemed to meet the approval of the group, although there was no express agreement to use it. Saso also volunteered to collect all of the individual resignations and deliver them, as a group, to the Scarborough Board offices. It was thought that this would have more impact, and would avoid the potential stigma of being the first to resign. As David Bergson put it, if all of the resignations were delivered at the same time, the teachers' action would not be "personalized". It is a little ironic - not to say contradictory - that the resignees now contend that their actions were not taken in concert or in accordance with a common understanding but were acts of individual conscience.

24. From the tone of the meeting, it was anticipated that most, if not all, of those present would resign. As it turned out, they all did. By the following day, Saso had received resignations from all but one of the individuals who had attended the meeting. He put each resignation letter in a separate envelope, which he then addressed individually, to the attention of Ms. McEachern. To avoid any personal notariety, Saso asked Andy Andoniadis to deliver the letters to the Scarborough Board, which he (Andoniadis) subsequently did.

25. Despite the absence of any overt reference to the collective bargaining situation, it is obvious that the resignations were a response to the Scarborough Board's negotiating position, solicited by Andoniadis, and designed to strengthen the OSSTF's hand at the bargaining table. All of the witnesses testified that but for the pink letter they would not have resigned; moreover, if the bargaining issues had been resolved prior to the beginning of the summer programme, they would have been pleased to undertake their appointed tasks.

26. Nadeen Bender, a curriculum resource teacher, did not attend the March 1st meeting, although she was later told about it. Upon receipt of the pink letter she assumed that it was her responsibility to resign a conclusion which is hardly surprising given the Information Bulletin from the President of District 16 indicating that those who had accepted positions in the summer programme would be prohibited by OSSTF by-laws from working. She wrote to the Scarborough Board on March 2nd, citing the pink letter as the reason for her withdrawal from the programme. So did Keith Hubbard, who wrote to Ms. McEachern as early as February 25th. Hugh Miller, a curriculum resource teacher, sent in his letter of resignation on March 7th. Miller had attended the meeting of March 1st, but unlike the other principals and vice-principals, he did not use Saso's wording, nor accept his offer to act as courier.

27. On or about March 8, 1983, there was a meeting of the District 16 membership, chaired by Andoniadis, and attended by many of the individuals who, by that time, had submitted their resignations. Andoniadis was pleased with their response. He sought permission to publish the names of the resignees in another information bulletin which would be issued in a couple of days and circulated to all of the teachers employed by the Scarborough Board. A draft of this bulletin was produced, considered, and approved by the resignees who were at the meeting. When issued on March 10, 1983, it contained the following comments with respect to what they had done:

March 10, 1983

To: District 16 Membership

From: Andy Andoniadis, President

INFORMATION BULLETIN (PINK LETTER) UPDATE

The Pink Letter on Summer (Night and Day) School and 1983 Fall Night/Winter Night School has been in effect now for two weeks. The District 16 Executive and the Provincial Executive are very pleased with the response of District 16 members to it and the full support which they have shown. Certain items with respect to the Pink Letter may require clarification.

I. It does apply to the 1983 Summer Night School credit courses scheduled to commence in April, as well as the Summer Day School and Fall Night School credit courses.

2. The Pink Letter prohibits teachers from applying for these positions, as well as working in the programs. Therefore, any teachers who have applied for or accepted a position prior to the Pink Letter being issued are expected to indicate, in writing, to the Board, that they are withdrawing that application, or resign from the position. There are no exceptions.

[emphasis added]

3. The Pink Letter applies to all O.S.S.T.F. members in Ontario, not just Scarborough teachers.

4. Although the Pink Letter makes no mention of curriculum writing, the District 16 policy mention (reprinted below) does include these duties. The policy motion reads:

BE IT RESOLVED THAT, it be the policy of District 16 that, regular contract teachers should not accept night school positions or summer school positions which involve the teaching of credit courses, summer positions involving the development of curriculum, summer co-op duties, unless the remuneration for those positions is equivalent to the teacher's regular salary.

5. Scarborugh Elementary teachers have been sent a letter requesting that they support our efforts by refraining from taking these positions.

6. We would request that O.S.S.T.F. members approach Occasional Teachers and attempt to enlist their support. If salary rates are raised for these positions, all teachers would benefit. It would be impossible for O.S.S.T.F. surplus teachers to fill all of those positions under the current system.

I would like to inform the District that all of the Principals and Vice-Principals of the Summer Night School Program and Summer Day School Program have submitted their resignations. The Curriculum Resource Teachers attached to these programs have done the same. The District 16 Executive appreciates their prompt response in this regard. By taking this action they displayed leadership and set a clear example to other members of the District. Some of the teachers who have resigned or refused to accept positions are:

H. Von Schilling Dave Bergson Gary Cummings Wayne Clatworthy Al Fleming Ron Fitton Inez Elliston Hugh Miller Paul Zolis Brian Punchard Ross McGhee Anne Wilcox John Saso Denise Overall Marg Taylor Keith Hubbard

Peter Baker Nadeen Bender

Gail Darling Jim Gilliland

Ron Hinzel

School Guidance Heads have also indicated their support for the Pink Letter. Teachers should be aware, however, that the Student Services Department in each school will continue to counsel students and provide information and application forms for Night School and Summer School. This activity is part of their regular function and is in no way restricted by the Pink Letter.

If any teacher requires further information, please do not hesitate to contact the District 16 Office at 292-9770.

Andy Andoniadis

Note

Many teachers have inquired about their obligations with respect to other voluntary services. Bill 100, Section 71 states that,

"NOTHING IN THIS ACT PRECLUDES A TEACHER, (b) FROM WITHDRAWING A VOLUNTARY SERVICE IN GOOD FAITH ON AN INDIVIDUAL BASIS."

The Information Bulletin of March 10th merely confirms the message conveyed in the Bulletin of February 22nd: persons who had accepted appointments were expected to resign. Those who had already done so were commended for their actions by the executives of OSSTF and its District 16.

28. Jack Hanna, the principal appointed to run the summer outdoor education programme, received the March 10th letter shortly after its release. Hanna had not attended the meetings of March 1st or March 8th, nor had he yet tendered his resignation. Upon receipt of the March 10th notice, however, he decided that it was necessary to "join his colleagues", and "support the Federation". He telephoned Andoniadis to obtain the wording which the others had used in their resignation letters, but ultimately decided that he preferred his own. His letter was drafted on March 11th. He indicates that the collective bargaining impasse requires him to resign, but if the situation could be resolved he would be available to fill his appointed position.

29. At the District 16 meeting of March 8th, there was considerable speculation about the possible Scarborough Board response to the resignations of (by that time) virtually the entire complement of principals, vice-principals and curriculum resource teachers. Without their assistance, it was anticipated that the Scarborough Board would face considerable administrative difficulties - as indeed it did. It was hypothesized that the Scarborough Board could either accept the resignations and try to run the programme shorthanded, or with replacements; or, alternatively, it could reject the resignations, and perhaps take legal proceedings to hold the teachers to their commitment. Andoniadis assured those present that there would be no sanctions taken against the teachers if the Scarborough Board adopted the latter course and if, in face of a rejection of their resignations, the teachers decided to perform their duties. Of course, this information was not communicated to the Scarborough Board.

30. It might be noted that despite Andoniadis' assurance that there would be no reprisals, it is by no means clear that the resignees would have fulfilled their responsibilities, even if they had received an unequivocal rejection of their purported resignations. A number of the individual respondents testified that they would not necessarily have acceded to an employer request to fulfill their appointed responsibilities even if the Scarborough Board had demanded that they do so. Baker testified that he would have consulted with the OSSTF about "the next move". So did Hubbard and Saso. Nadeen Bender testified that she would not have carried on with her duties regardless of what the Scarborough Board said.

31. Following the receipt of the resignation letters, the officials of the Scarborough Board conducted what Ms. McEachern described as a "war council" to consider the employer's options. There was no direct communication with those who had purportedly resigned to indicate that those resignations were, or were not accepted. Indeed, the Scarborough Board did not even acknowledge receipt of the letters, as it ordinarily did whenever it received any communication from the members of its teaching staff. David Bergson testified that the absence of any acknowledgement of his resignation letter in the days and weeks following its submission, prompted him to wonder whether it had, in fact, been accepted. This uncertainty persisted until about March 17th, when the Scarborough Board began advertising in the Globe & Mail for replacements to fill the positions to which the resignees had earlier been appointed. The OSSTF purchased counter advertisements to warn prospective applicants of the existence of the pink letter. The resignees assumed that the attempt to recruit replacements meant that the Scarborough Board had accepted their resignations.

32. That is not the evidence of Alice McEachern. She testified that there was never any intention to accept the teachers' resignations. That is why there was no communication to them to that effect, nor even an acknowledgement that the resignation letters had been received. There was some uncertainty as to the most appropriate Scarborough Board response, but the employer's primary concern was to mount the summer programme, despite the pink letter and its consequences. To this end, efforts were made to ascertain whether those who had not yet resigned were planning to do so, and some of those who had indicated an intention to resign were asked to turn over material on which they were working. In those conversations there was no indication that the resignations had been accepted. However, neither was there any indication, at this stage, that the resignations had been rejected, or that the Scarborough Board expected the teachers to continue performing their appointed duties. None of the resignees was specifically instructed to attend, or did attend, the organization meetings scheduled in April. The teachers assumed that this silence from the Scarborough Board meant that their resignations had been accepted.

33. Again this conclusion is refuted by the evidence of Ms. McEachern. She testified that, in the Scarborough Board's view, any command to the teachers to perform their duties would be futile unless the OSSTF was prepared to grant a dispensation - an assessment which is not at all unreasonable, given the evidence before us that many of the named respondents were not prepared to take up their duties without consulting the OSSTF. And, of course, the Scarborough Board was not aware that the teachers had been told that the OSSTF would take no sanctions against them should the Scarborough Board reject their resignations. Any written material issued by the OSSTF (for example, the February 22nd newsletter or the March 10th pink letter update) suggested precisely the opposite. There was no real expectation that those who had tendered their resignations would return to their duties, even if the resignation letters were formally rejected. That is why the employer considered it prudent to advertise for replacements while it considered what to do. One way or another, it was determined to mount the summer programme, and there remained the possibility that the problem could be resolved at the bargaining table. To put the matter colloquially, the Scarborough Board was trying to "preserve its options" without finally committing itself to any fixed method of staffing the summer school programme. One of those options was to seek a direction from this Board requiring the resignees to fulfill their commitments.

34. Whatever may have been the resignees'understanding of their position, on April 12, 1983, the employer launched the present proceeding claiming that the mass resignations constituted an unlawful strike, and requesting the Labour Relations Board to issue a cease and desist direction — in effect, requiring the resignees to fulfill the duties for which they had been appointed, and prohibiting OSSTF officials from interfering with the performance of those duties. The pleadings in the proceeding before the Labour Relations Board were served on each of the named respondents, and were supplemented by a letter dated April 19, 1983 addressed to each of the resignees. The letter to John Saso is typical and reads as follows:

Re: 1983 Summer School Program

I believe it will be evident to you from the proceedings which The Board of Education for the Borough of Scarborough ("SBE") has commenced before the Ontario Labour Relations Board (the "OLRB") that SBE has not accepted your resignation from the position of Principal at L'Amoreaux Collegiate Institute for the 1983 Summer School program.

In case it was not clear to you, however, the purpose of this letter is to confirm the following points:

1. SBE does not accept your resignation.

2. Notwithstanding the fact that SBE is attempting to make alternative arrangements to staff the Summer School program in the event you do not honour your commitment, SBE expects and wants you to honour your commitment and your position will be available should you honour that commitment.

If you have any questions concerning this matter, please let me know.

35. We recognize that once these proceedings before the Board actually commenced on April 21, 1983, the parties were agreed that the status quo should be maintained pending a determination of their respective legal rights and responsibilities. As it turned out, the evidence consumed several days, so that the hearings were not completed until the summer programme was well underway. This decision will not issue until after it is over. However, it is clear that prior to the first day of hearing there can be no doubt about the position that the employer was taking, and there was still time for the resignees to relent and honour their earlier commitment to participate in the 1983 summer programme. They decided not to do so, and, in consequence, the employer was forced to adopt a variety of extraordinary and temporary measures so that the summer programme could be maintained.

ARGUMENT

36. The provisions of the Labour Relations Act, to which reference might be made, are as follows:

l.-(l) In this Act,

(o) "strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output;

(p) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

72.-(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act, and

(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 113(3) to have released to the parties the report of a conciliation board or mediator; or

(b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 113(3) to have released to the parties a notice that he does not consider it advisable to appoint a conciliation board.

(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.

74. No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.

76.-(l) No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.

37. The position of the Scarborough Board of Education is fairly simple and can be succinctly summarized. In the Scarborough Board's submission, the principals, vice-principals, and curriculum resource teachers have engaged in a strike which was actively encouraged, procured and supported by officials of the OSSTF. The Scarborough Board points to the call for resignation issued by the President of District 16 on February 22nd, the "consensus building" meeting of March 1st, the common language of the resignation letters which was provided by the President of District 16, the common date and method of delivery, the role of Saso and Baker, and the admission that the purpose of the resignations was to put collective bargaining pressure on the Scarborough Board. Following their resignations the resignees were commended for supporting the OSSTF cause - an action which prompted the only principal who had not yet resigned to join his colleagues in what he, at least, regarded as a collective response to the OSSTF's call for support. The employer's position is that the principals, vice-principals and curriculum resource teachers were "employees" who had already undertaken some of their responsibilities at the time that they decided to resign, and that those resignations were a refusal to work in concert, in combination, and in accordance with a common understanding. The employer further argues that the OSSTF is a trade union within the meaning of section l(l)(p) of the Labour Relations Act, with the result that its officials are prohibited by section 74 from calling, encouraging or supporting an unlawful strike. In any event, the employer argues, the OSSTF is an incorporated entity (which is not disputed) so that it is a "person" within the meaning of section 76(1) of the Act. As a corporate "person", it is liable for the misconduct of its officials or agents. Andoniadis is both a "person" to whom section 76 applies, as well as an official or agent of OSSTF, and Andoniadis played an important role in encouraging and supporting the mass resignations. Counsel points out that although Andoniadis was present throughout the proceeding, he did not testify, nor was there any evidence from any other official of OSSTF and its District 16. The employer seeks a declaration that the principals, vice-principals and curriculum resource teachers have engaged in an unlawful strike and that the unlawful strike was counselled, procured, encouraged and supported by the provincial OSSTF and its District 16. No monetary relief is requested, nor does the employer seek a cease and desist direction which would require the resignees to fulfill their obligations. It was recognized that by the time this decision will issue, such relief would be academic. However, the employer does seek a direction against the teacher organization requiring it to lift the pink letter as it applies to persons who have agreed to teach in the summer programmes and an order to refrain from threatening reprisals or any other form of internal union discipline against the teachers who choose to live up to commitments which they have made. The Scarborough Board also seeks a cease and desist direction prohibiting OSSTF officials or agents from counselling, etc., an unlawful strike.

38. On behalf of the individual respondents, it is argued that, at the time they submitted their resignations, there was no subsisting employment relationship with the Scarborough Board of Education. There was, at most, a contract of hiring which, it is said, is different from a contract of employment (see: Mullen v. Millar 1924 CanLII 433 (ON SCAD), [1925] 2 D.L.R. 321, 56 O.L.R. 345, and Aebig v. Henschel 1941 CanLII 210 (SK KB), [1941] 1 W.W.R. 443). It is submitted that neither of the primary indicia of an employment relationship - work for wages - are present here, because the summer programme had not yet begun and no one had yet been paid. Indeed, the level of remuneration had not even been determined. The resigneesargue that since they were not employees at the time the resignations were submitted, section l(1)(o) can have no application to them.

39. The resignees argue, in the alternative, that even if there was a subsisting employment relationship, all that has occurred is a series of individual, voluntary "quits". It is submitted that this is the right of every employee and even if undertaken in concert, cannot be considered a strike within the meaning of the Labour Relations Act. However, it is not conceded that the teachers did act in concert. It is submitted that the resignations were acts of individual conscience which are insufficient to meet the requirement of concerted action required by the definition of a strike.

40. The respondents further argued that even if the submission of their resignations could be said to be in concert, the evidence establishes that those resignations were accepted. It is argued that this precludes the employer from asserting that the resignations constitute a collective refusal to work. The respondents submitted that, by its conduct, the employer has permitted the resignees to withdraw from the summer programme, and when it sought to replace them with others, it was repudiating whatever pre-existing relationship there might have been.

41. In the further alternative, the respondents argue that even if there was a strike within the meaning of the Labour Relations Act, the Labour Relations Board should exercise its discretion to decline to grant any remedy at this stage. Not only would it be academic, but, the respondents note, the Scarborough Board waited some six weeks after the resignations were tendered before launching the present proceedings. If the Scarborough Board was concerned about an unlawful strike and had not, in fact, accepted the resignations, why wait six weeks before seeking a legal remedy? The respondents ask how the Scarborough Board can now complain about disruption when the programme was almost underway before any determination was made to communicate to the teachers and indicate unequivocally that their resignations had not been accepted.

42. On behalf of the teachers' organization and its officials, it is argued that the evidence does not establish that it is a trade union within the meaning of the Labour Relations Act. It is also argued that there is nothing to connect the officials of the (Provincial) OSSTF to any of the conduct here complained of.

DECISION

43. We begin by observing that section l(l)(o) of the Act cannot be considered in the abstract. Not only is the language of the section very general, and expressed to be "inclusive" (i.e., there may be forms of prohibited conduct not specifically enumerated in the definition), but it is also part of a general statutory scheme designed to encourage orderly collective bargaining and promote industrial peace. Two critical elements of that statutory scheme are the method for the acquisition of bargaining rights, and the absolute prohibition on collective economic sanctions until the compulsory conciliation process has been exhausted. It is not disputed in this case that the OSSTF has not sought certification under the Labour Relations Act to become the bargaining agent for the individuals employed in the Scarborough Board's summer programmes, nor was there any resort to conciliation before the resignees were urged to, and subsequently did, withdraw their services from the summer programme. If the action complained of can be considered a strike within the meaning of the Act, there is no doubt that it would be both untimely and illegal.

44. Was the action of the resignees a strike? In our view it was. There was a refusal to work or continue to work, that action was taken in concert or in accordance with a common understanding, and it was intended to interfere and did, in fact, interfere with the operation of the Scarborough Board's summer programmes. The resignees had each undertaken to work in the summer programme, including the performance of such duties as were required prior to the registration of students and the beginning of classes. By their resignations, each of the resignees was refusing to perform or continue to perform those duties; moreover, the resignations were not the result of an individual decision taken in response to the personal circumstances of each teacher. They were solicited by Andy Andoniadis, on pain of sanctions, in support of the OSSTF bargaining position. In the case of the resignees who attended the March 1st "second meeting" and all sent in their resignations the following day, the actions can only be regarded as a collective response to the OSSTF's call for support. Peter Baker himself described the meeting as a process of "consensus building" - words which, on their ordinary meaning, imply the development of a "group solidarity in sentiment and belief' (to use the definition found in Webster's Dictionary). Jack Hanna did not regard his resignation as an individual effort motivated by purely personal concerns. He thought he was joining the group supporting the Federation. No doubt, in a sense, each individual decided to submit a separate resignation just as in Domglass, [1976] OLRB Rep. Oct. 569, each employee decided to heed the call of the Canadian Labour Congress to engage in a political strike - but it is pure sophistry to argue, as the respondents do, that their actions were not taken in concert or in accordance with a common understanding.

45. Nor were their actions a true "quit" as counsel submits, because it was admitted (and some of the individual respondents hoped) that if the collective bargaining problems with the Scarborough Board could be resolved, all of the resignees were quite prepared to continue with their duties. Their "resignations" were not an unconditional or irrevocable severance of a subsisting employment relationship. Quite the contrary; the whole purpose of their refusal to continue working was to put pressure on the Scarborough Board to make concessions with respect to the terms of the employment relationships in its summer programmes to the immediate and future benefit of both the resignees themselves, and their fellow members of District 16. Yet it is precisely this kind of resort to collective economic sanctions which is regulated by the Labour Relations Act. There may well be cases where it is difficult to distinguish a concerted refusal to continue to work from a mass severance of employment relationships; but this is not one of them. Nor, given the limited remedy sought by the Scarborough Board, need we concern ourselves with either Charter of Rights or industrial relations policy considerations which might persuade this Board not to issue a direction which, in effect, requires specific performance of employment contracts outside a formalized collective bargaining regime. (However, see: Weyerhauser Canada Ltd. [1976] 2 Can. L.R.B. Rep. 41, where the British Columbia Labour Relations Board had no difficulty construing a "mass quit" to be a strike when it had an evident collective bargaining motivation.)

46. The only remaining question in this matter is whether the resignees can be considered to be employees within the meaning of section 1(1)(o) of the Act. In our view, they were. They had been appointed to perform certain duties in connection with the summer programme, they had actually entered upon the performance of such duties, and, in a colloquial sense, they all thought that they had a job. The fact that they had not yet been paid is not determinative, for there is no reason to discount the evidence which suggests that payments due after the programme started would cover the miscellaneous administrative duties which had to be performed prior to student registration. There may well be a distinction at common law between a "contract of hiring" and a "contract of employment", but we do not think such distinction necessarily governs the interpretation of the Labour Relations Act. Indeed, in appropriate cases the Board has found that individuals are not employees within the meaning of a provision of the Act, even though they clearly were employees at common law and the Courts have affirmed that common law concepts do not always provide an unfailing guide for the resolution of legal issues arising in a collective bargaining context (see for example: Blouin Drywall Contractors Limited v. United Brotherhood of Carpenters and Joiners of America, Local 2486 75 CLLC ¶ 14,295; and International Longshoremen's Assoc. et al. v. Maritime Employers' Assoc. et al 78 CLLC ¶14,171). Of course, the Board does not have carte blanche to rewrite the statute, but, by the same token, it has a responsibility to give an interpretation to section l(l)(o) which will best accommodate the statutory objective of promoting orderly collective bargaining and industrial peace. We find that the resignees were employees within the meaning of section l(l)(o) of the Act and, accordingly, that their mass resignation constituted an unlawful strike. We further find that this unlawful strike was counselled, encouraged and supported by Andy Andoniadis, the President of District 16.

47. Did the Scarborough Board, by its conduct, repudiate the relationship with the resignees so that, at least by March 17th, it was at an end? This is primarily a factual question, and we find, on the evidence, that there was no severance, or intention to sever, the relationship with the resignees - whatever they may have believed. Indeed, the Scarborough Board decided specifically not to accept the teachers' resignations while it examined its options. Those options included hiring replacements, launching legal proceedings to hold the resignees to their commitments, or both. As it turned out, the Scarborough Board embraced both options as it was entitled and prudent to do, given the uncertainty that either would accomplish its main objective: to run the summer programme as scheduled. It may be that if enough replacements could have been found, the Scarborough Board might have accepted the resignations. But, on the evidence before us, it is clear that the Scarborough Board did not do so, and, in the circumstances of this case, we see no reason why the delay occasioned by considering its alternatives should deprive it of the relief which it now seeks.

48. It is said that the OSSTF is not a trade union and that, therefore, the actions of its officers, officials or agents cannot occasion liability under section 74 of the Act. Having examined the constitution and bylaws of the OSSTF, as well as the collective bargaining role which it plays and which is recognized in the School Boards and Teachers Collective Negotiations Act, we find that the OSSTF meets the definition of trade union found in section l(l)(p) of the Labour Relations Act.

49. The pink letter, as framed, does not call for resignations and, therefore, cannot be construed, in itself, as a call to engage in an unlawful strike. Absent such express call for resignations, it might have been difficult to conclude that there had been any impropriety such as would trigger a remedy against OSSTF. However, Andoniadis is the president of District 16 and a participant in the bargaining process which, at the time of the issuance of the pink letter was in "take-over", that is, being run by OSSTF, and it is difficult to believe that the OSSTF officials were not fully aware of the resignations and their purpose. In the February 22nd Information Bulletin Andoniadis purports to be announcing a decision of the OSSTF Provincial Executive which is then interpreted as requiring resignations. The March 10th Information Bulletin indicates that both "the District 16 Executive and the Provincial Executive are very pleased with the response of District 16 members", then goes on to repeat the obligation to resign and commend those who have already done so. There is no evidence that OSSTF or any of its other officials ever sought to repudiate Andoniadis' position. Andoniadis, although present throughout the hearing, did not testify, nor did any other official of OSSTF. In the circumstances, we are prepared to draw an adverse inference. We find that the respondent OSSTF and its District 16 have contravened section 74 of the Labour Relations Act.

50. We are not satisfied on the basis of the evidence before us that the other named officials of OSSTF or its negotiators were actively engaged in soliciting the support of the resignees - although again, they must have been aware of the action which the resignees took. The complaint insofar as it applies to these respondents must therefore be dismissed.

51. Having regard to the foregoing, the Board makes the following determinations, declarations, and remedial directions:

a) the Board finds and declares that the principals, vice-principals, and curriculum resource teachers, more particularly listed on Schedule "I" hereto, have engaged in an unlawful strike;

b) the Board finds and declares that Andy Andoniadis, the president of District 16 of the Ontario Secondary School Teachers' Federation has counselled, procured, supported and encouraged an unlawful strike, and has further done acts which he knew or ought to have known would, as a probably and reasonable consequence, induce other persons to engage in an unlawful strike;

c) the Board directs that the respondent Andy Andoniadis forthwith cease and desist from calling, counselling, procuring, supporting or encouraging an unlawful strike, and further, that he cease and desist from any act if he knows or ought to know that, as a probable and reasonable consequence, another person or persons will engage in an unlawful strike;

d) the Board finds and declares that the Ontario Secondary School Teachers' Federation has called or authorized an unlawful strike;

e) the Board directs that the Ontario Secondary School Teachers' Federation forthwith cease and desist from calling, or authorizing an unlawful strike, or threatening to do so; and, in particular, from counselling, procuring, supporting or encouraging the resignation of individuals who have accepted and been appointed to positions in the Scarborough Board of Education's summer programmes; and

f) the Board further directs that the Ontario Secondary School Teachers' Federation and its District 16 advise all of the teacher members of District 16 that they will not be penalized in any way for refusing to engage in strike activity which the Board has found to be unlawful.

52. The complaint is dismissed insofar as it relates to the individuals more particularly set out on Schedule "II" attached hereto.

DECISION OF BOARD MEMBER L. COLLINS;

1. The question before the Board in this case was whether certain principals, vice- principals and teachers (the "resignees" to adopt the term used by the majority) engaged in an unlawful strike within the meaning of the Labour Relations Act. Only employees can engage in a strike contrary to the Labour Relations Act. (See the definition of "strike" in section l(l)(o) of the Act). This Board has already found that the mere fact that persons were employed by the applicant pursuant to the School Boards and Teachers Collective Negotiations Act did not establish that they were employees of the applicant under the Labour Relations Act. (Ottawa Board of Education, [1983] OLRB Rep. May 694). It therefore became necessary to decide whether the resignees were employees in relation to the applicant's summer programme during the time it alleged that they were engaging in an unlawful strike.

2. I agree with the majority's review of the evidence and I too find that the resignees had not acted individually according to their own consciences, but had tendered their resignations in accordance with a common understanding at the urging of the Federation. I also find, concurring with the majority, that they had entered into an employment relationship under the Labour Relations Act with the applicant in respect of the summer programme when their employment applications were accepted and they commenced doing the necessary preparatory work for that programme. However, the majority and I disagree over the characterization of the resignees' status following the tendering of their resignations.

3. In my opinion, the resignees unilaterally "quit" their employment in respect of the applicant's summer programme. The resignees clearly decided, as a group, that they no longer wished to be employed in the summer programme because they were not satisfied with the terms and conditions of employment in that programme. Clearly, employees have the option of deciding that they no longer wish to be employed, and they may resign from or quit their employment without being in violation of the Labour Relations Act. See section 77 of the Act which states:

Nothing in this Act prohibits.. .the quitting of employment for cause if the . . quitting does not constitute a . . . strike.

[emphasis added]

Once employees have quit or resigned from employment, they are no longer employees. Therefore, they cannot be participating in or engaging in a strike against their employer following their resignation. (See Ecodyne Limited, [1979] OLRB Rep. July 629 at 638.)

4. The resignees in this case were not actively at work in the summer programme at the time they resigned from their employment in that programme. Unlike the Ecodyne case, supra, the resignees here tendered their resignations at a time when they were not at work. Therefore, they did not, while employees of the applicant in relation to the summer programme, refuse to work or to continue to work for the applicant. Their refusal occurred after their resignation, at a time when they were not employees and thus were not capable of engaging in a strike against the applicant.

5. The majority states that the resignees did not actually quit because they admitted that they were prepared to resume their duties if the collective bargaining problems that the Federation had with the applicant were resolved. While that admission was made, I take a different view of its effect. I find that the resignees would have been prepared to become employed once again in the applicant's summer programme, if the terms and conditions became acceptable to them. However, the applicant was free to fill its positions with anyone willing to accept employment, and was under no obligation to the resignees to offer them employment or to hire them for the summer programme after they had quit. I do not believe that the resignees intended to maintain their employment with the applicant in relation to the summer programme after they had quit. They resigned from their employment and from that point forward ceased to be employees, regardless of how the applicant treated their resignations.

6. Employees are free, as a group, to decide to quit their employment if they are not satisfied with it. While their action of quitting may, depending on the circumstances, give rise to a momentary strike, as in the Ecodyne case, employees who decide to quit and advise their employer outside of working hours that they have quit, end their employment relationship at the time they quit, and their later refusal or failure to report for work cannot be a strike because they are no longer employees. In my opinion, the latter situation applies to this case, and for that reason, I would dismiss the application.

[Schedules "A", I and II omitted]