The Ottawa Board of Education v. Ontario Secondary School Teachers Federation, 1983 CanLII 904

[1983] OLRB Rep. May 694

2658-82-U The Ottawa Board of Education, Applicant, v. Ontario Secondary School Teachers Federation and others listed on Schedule "A", Respondents.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W. F. Rutherford and I. M. Stamp.

APPEARANCES: B. H. Stewart, Barry Brown, L. Tenare, R. Lintell and R. Gilbert for the applicant; Maurice A. Green, Brain Herlich, Morris Richardson, Marc Cazabon, Bert Callum and Donald Girourard for the respondents.

DECISION OF THE BOARD; May 13, 1983

1. This is an application under section 67 of the School Boards and Teachers Negotiations Act for a declaration of an unlawful strike and, alternatively, under section 92 of the Labour Relations Act for a declaration of an unlawful strike. This application has been filed in response to the issuance of "pink letters" by the Ontario Secondary School Teachers Federation and by L’Association Des Ensignants Franco - Ontariens, advising their respective members, who teach in the regular day school programme of the applicant Board, not to apply for or accept employment with the applicant Board in respect of "night school credit courses for 1983-84 and summer school 1983."

2. Section 67 of the School Boards and Teachers Collective Negotiations Act reads as follows:

3. • (1) Where the Federation, an affiliate or a branch affiliate calls or authorizes a strike or teachers take part in a strike against a board that the board, a member association, the Council or any person normally resident within the jurisdiction of the board alleges is unlawful, the board, member association, Council or person may apply to the Ontario Labour Relations Board for a declaration that the strike is unlawful, and the Board may make the declaration.

(2) Where the Council, a member association or a board calls or authorizes a lock-out of members of a branch affiliate that the branch affiliate, an affiliate, the Federation or any person normally resident within the jurisdiction of the board alleges is unlawful, the branch affiliate, affiliate, Federation or person may apply to the Ontario Labour Relations Board for a declaration that the lock-out is unlawful, and the Board may make the declaration.

(3) Where the Ontario Labour Relations Board makes a declaration under subsection (1) or (2), the Board in its discretion may, in addition, direct what action, if any, a person, teacher, branch affiliate, affiliate, the Federation, a board, member association or the

Council and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or unlawful lock-out.

(4) The Ontario Labour Relations Board shall file in the office of the Registrar of the Supreme Court a copy of the direction made under subsection (3), exclusive of the reasons therefor, whereupon the direction shall be entered in the same way as a judgment or order of the court and is enforceable as such.

3. Section 92 of the Labour Relations Act reads as follows:

Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or threatened to engage in an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike, the Board may so declare and, in addition, in its discretion, it may direct what action if any a person, employee, employer employers organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

4. The parties agreed on statements of fact which were tendered along with the exhibits which are referred to in the statements. The statements of fact are reproduced below:

(1) The Applicant Board of Education (herein called the "Ap­plicant") is/was a party to a collective agreement with the Respondent Branch Affiliate, District 26 Ontario Secondary School Teachers Federation (herein called "District 26") and the Respondent Branch Affiliate, L'Association Des Ensignants Franco Ontariens Unite Ottawa Secondaire (herein called "Ottawa AEFO" and the Ottawa AEFO and District 26 are both referred to herein as the "Branch Affiliates").

(2) The Respondents O.S.S.T.F. (hereinafter called "O.S.S.T.F.") and L'Association Des Ensignants Franco Ontariens (hereinafter called "A.E.F.O.") are "affiliates" as defined by the School Boards and Teachers Collective Negotiations Act (hereinafter called the "Negotiations Act"). The Respondents, District 26 and Ottawa A.E.F.O. are "Branch Affiliates" as defined by the Negotiations Act.

(3) The parties agree that the Respondent Affiliates and Branch Affiliates are "Trade Unions" for the purposes of the Ontario Labour Relations Act, provided that the Ontario Labour Relations Board finds they have such status, and no issue is raised by the Applicant or the Respondents in these proceedings on that issue. Exhibit 31 contains the Constitution, By-laws and other relevant material relating to the Respondent O.S.S.T.F. and the Respondent A.E.E.O.

(4) Exhibit 28 contains the organizational By-laws and documenta­tion of District 26 and Ottawa A.E.F.O.

(5) The Branch Affiliates' attempts to have the terms and conditions of teachers employed in the Continuing Education Programme of the Applicant (more particularly, Summer School and Night School) covered by the terms of the Collective Agreement in existence between the Branch Affiliates and the Applicant are outlined in the proposals of the Branch Affiliate for inclusion in the 1980-82 Collective Agreement (Exhibit 3).

(6) As a result of concluding the 1980-82 collective agreement, the parties established a joint O.S.S.T.F./Administration Review Committee on continuing education to study the Branch Affiliates' concerns relating to the employment relationship of such teachers and other concerns relating to the continuing education program. The terms of reference of such Committee are set out in the letter of the Director of the Applicant to the Presidents of the Branch Affiliates dated February 16, 1981 (exhibit 2).

(7) The positions of the Branch Affiliates and the Applicant are set out respectively in Exhibits 4 and 5 being reports to the aforementioned Consultation Committee. The parties place exhibits 4 and 5 before the Board not to demonstrate the truth of their respective positions but to outline what in fact the positions of the Branch Affiliates and the Board were on the issues.

issues on conti(8) Such consultation procedures were unsuccessful in resolving the outstanding nuing education. At the final meeting of the Consultation Committee in December of 1981, when it appeared that no agreement or resolution of the outstanding issues was possible the Respondent Robert Adair, a secondary teacher with the Applicant and a District 26 representative on the Consultation Committee as well as being the chief negotiator for the Branch Affiliates in the 1982-83 negotiations with the Applicant, stated to the representatives of the Applicant that, if the Applicant didn't change its position (on continuing educa­tion), the Branch Affiliates would request a "pink letter".

(9) The Branch Affiliates attempted to have the proposals set out in exhibit 6, accepted by the Applicant in their negotiations for a 1982-83 collective agreement which negotiations commenced on or about February 1982. By December 15th, 1982 the negotiating parties of the Applicant and the Branch Affiliates had been unsuccessful in agreeing to a collective agreement for the 1982-83 school year. The parties are in dispute as to the effect of the Inflation Restraint Act on the 1980-82 Collective Agreement which was to expire on August 31, 1982. The Respondent's position is set out in paragraph 2 of Schedule A to its reply and the Applicant's position is set out in paragraph 11 of Schedule B to its Application. The parties agree that the Board of Education is a "board" for the purposes of section 6(1)(c) of the Inflation Restraint Act.

(10) The Applicant, while prepared to discuss the Branch Affiliate's concerns about continuing education, stated that the matter of terms and conditions of employment of persons employed in a Continuing Education program was not a proper matter for collective bargaining under the Negotiations Act.

(11) The Respondents Hicks and Adair, properly described in exhibit 7, prepared and sent to the members of District 26 exhibit 7.

(12) On April 22nd, 1982 at a negotiating meeting with the Applicant, the Respondent Adair on behalf of the Branch Affiliates stated/threatened that, if the Applicant continued to refuse to negotiate the issue of summer school and night school teaching, then District 26 and Ottawa A.E.F.O. would request and support the issuance of a pink letter applicable to the night school fall term of 1982 and that O.S.S.T.F. and A.E.F.O. members employed by the Applicant in the secondary schools would not apply for positions in continuing education and that such members who taught in continuing education could be disciplined. The Applicant's negotiator at the same meeting, upon being advised of the Branch Affiliates position, informed/ threatened the Branch Affiliates and individuals present with criminal and civil proceedings and accused them of "conspiring to commit an illegal act punishable under the criminal code by a fine or jail". The expression "pink letter" was known to both parties to mean the issuance of written directions from the Affiliates in the form set out in exhibits 16 and 17.

(13) Subsequently, on May 20th, 1982, after further discussion of the Summer School/Night School issue the respondent Adair informed the Applicant and the Respondent Donald Girouard, President Ottawa A.E.F.O., informed the Applicant that the Branch Affiliates supported the issuance of a pink letter by their respective affiliates, O.S.S.T.F. and A.E.F.O. The Respondent Girouard also stated that he, the Ottawa A.E.RO. and the A.E.F.O. consulted with and supported the action of District 26 and O.S.S.T.F. and were so informing their members. The Applicant's representative advised that the Applicant's Board of Trustees would meet on the 27th May and consider the legal options available to the Applicant.

(14) The Applicant's Superintendent of Personnel inquired as to the status of the request for a pink letter (exhibit 8) and was sent in reply exhibit 9 by the Respondent Hicks. On June 21st, 1982 the Applicant, through its chairperson, C. Jane Dobell sent to the Respondents Hicks and Girouard the letter listed as exhibit 10.

(15) On June 23, 1982 the Respondent Hicks informed (exhibit 11) members of District 26 that it was obtaining advice from District 26's legal counsel and from the Provincial Bargaining Committee of the Respondent O.S.S.T.F. and that, while District 26 supported the issuance of a pink letter, this was a decision of the Respondent O.S.S.T.F. Subsequently, the Applicant learned that the issuance of the pink letter would not occur prior to the commencement of the fall 1982 Continuing Education Program (exhibits 12 & 13). In fact such Program was conducted in the fall of 1982 without disruption.

(16) During discussion in the spring-summer of 1982 the Applicant was informed by officials of the Respondent Branch Affiliates that one of the major concerns of the Branch Affiliates was the number of students enrolled in the Day School Program of the Applicant who were enrolling in the evening courses of the Continuing Education Program of the Applicant. Accordingly, in order to satisfy this concern and thus ameliorate the differences between the Branch Affiliates and the Applicant concerning the staffing and remuneration of staff in the Continuing Education Program, the Applicant altered the eligibility rules as set out in exhibit 14 to increase the minimum number of adult learners, as defined in exhibit 14, required to be enrolled in an evening school programme before it could be provided and to instruct principals at the day school levels to provide greater access to various programmes in the day school before encouraging non-adult day school students to enroll in the evening Continuing Education Program of the Applicant. The Branch affiliates do not necessarily accept the long term efficacy of such policy.

(17) On or about January 20th, 1983 Mike Weeks, the Principal of the Continuing Education program of the Applicant and a member of District 26, learned that the Branch Affiliates were going to "pink list" the Applicant in respect of its Continuing Education Program. As a result, on January 20th, 1983 Mike Weeks called the Respondent Bert Callum, the President of the Respondent District 26 and advised him of the rumour which he had heard. The Respondent Callum, confirmed the rumour and, as a result, attended at Mike Weeks' office at which time he showed Weeks the "pink letter" of the Respondent O.S.S.T.F. which is set out in exhibit 16, dated January 25, 1983. At that time the Respondent Callum advised that the pink letter would be effective starting May 1, 1983, that the Members of District 26 would be advised of this and that he had taken steps to clarify the ambiguity of the commencement date of the application of the pink letter as set out in exhibit 16.

(18) The spring session of the Applicant's Night School Program was scheduled to commence on or about May 1, 1983 and the Applicant did not at January 20, 1983 have all staff committed to the program although the Administrators of the Night School had been appointed. The superintendent of the Continuing Education Program of the Applicant, Robert Gilletr, was also in attendance at the meeting with the Respondent Callum and Mike Weeks on January 20th. Gillett asked whether the forthcoming pink letter was to apply to the administrators of the evening program to which the Respondent Callum replied that it did not. The officials of the Applicant, Weeks and Gillett, thereupon concluded that the pink letter would also not apply to the administrators of the summer school portion of the Continuing Education program of the Applicant. By this time the Respondents Ager, Moar and 1-larvie had confirmed their involvement in the Continuing Education Program of the Applicant for the summer of 1983. At such meeting the Respondent Callum informed the Applicant that District 26 would urge its members, Elementary Contract Teachers em­ployed by the Applicant and elementary secondary contract teachers employed by the neighbouring Carleton Board of Education not to accept employment with the Applicant in its continuing education program including the May, 1983 Night School and the 1983 Summer School Program.

(19) In 1982, the Applicant hired the Respondents Brian Moar, David Harvie and Barry Ager as Summer School principals for the Summer School Program held in 1982. Although the said offers of employment were stated to be for a two year period until August 1983, Michael Weeks, representative of the Applicant, advised the three Respondents that each side could review the question of being a principal for the 1983 Summer School Program. The respondent, Brian Moar, is not employed by the Applicant under contract, but is employed by the Carleton Board of Education and is a member of District 43, O.S.S.T.F.

(20) In or about the late Fall of 1982, representatives of the Applicant contacted the Respondents Moar, Harvie and Ager and asked whether they wished to continue as summer school principals for the 1983 term. Each of the Respondents agreed to continue as principals for the 1983 term, prior to January 20th, 1983.

(21) On or about January 25th 1983 the Respondent O.S.S.T.F. at the request of District 26 issued its "pink letter" in the form set out in exhibit 16 hereunder. The Provincial Executive referred to in paragraph 3 of the pink letter are the Respondents Buchanan, Richardson, Dahl, Cottenden, Albert, Baumann, Buckthorpe and Hughes.

Exhibit #16

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

OTTAWA BOARD OF EDUCATION

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

1. The members of O.S.S.T.F. in Ottawa, District 26, have been unsuccessful in negotiating with the Ottawa Board of Education a satisfactory settlement of the assignment to, and remuneration for, Night School Credit Courses for 1983-84 and Summer School, 1983.

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

3. Any O.S.S.T.F. members who apply for or accept employment with the Ottawa Board of Education for the above positions after this date and 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.

THE ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION

(22) On or about January 27th, 1983 the Respondent A.E.F.O. at the request of Ottawa A.E.F.O issued its "pink letter" in the form set out in exhibit 17.

Exhibit #17

TO ALL A.E.F.O. MEMBERS

The members of the AEFO - Ottawa secondaire have not succeeded in reaching a satisfactory agreement with the Ottawa Board of Education concerning provisions relating to assignment and remuneration for teaching credit courses offered as part of the Continuing Education programme during 1983-1984 and the 1983 Summer School programme.

Teachers belonging to the AEFO must refrain from offering their services to the Ottawa Board of Education or accepting to teach night school or summer school courses until a satisfactory agreement has been reached.

Any AEFO member who applies for or accepts a teaching position in these courses will not receive support or assistance from the Association should he/she subsequently have contrac­tual difficulties.

(23) Following the meeting with the Respondent Callum, the Appli­cant during the week commencing January 31st, received confirmation from the Administrators of its May 1983 Evening School Programme and from the Directors (the Respondents Ager. Moar and Harvie) of its 1983 Summer School Program that they were prepared to carry on with their duties in respect of the Evening School Program and the Summer School Program.

(24) On or about February 2nd 1983, the Respondent Callum on behalf of District 26 issued to members of District 26 the memorandum set out as exhibit 18.

(25) On or about February 11th 1983, the Respondent Callum on behalf of District 26 issued to the members of District 26 the memorandum set out as exhibit 19.

(26) Prior to February 18th 1983 but subsequent to the issuance of exhibits 16 and 17 the Respondent District 43 contacted officials of the Carleton Board of Education. The Respondent District 43 through its Chief Negotiator the Respondent Seabrook informed officials of the Carleton Board of Education that District 43 did not want to be forced to pink list the Carleton Board. The Respondent Seabrook informed officials of the Carleton Board of Education that District 43 was concerned that, if the Carleton Board permitted students of the Applicant to attend its Summer School Program that District 26 could request the Respondent O.S.S.T.F. to pink list the Carleton Board of Education. In order to avoid this occurring the Respondent Seabrook on behalf of the Respondent District 43, requested written assurances from the Carleton Board of Education which would permit her to assure District 26 and the O.S.S.T.F. that a pink listing of the Carleton Board of Education was not necessary. As a result, on or about February 18, 1983, the Carleton Board of Education caused exhibit 20 to he sent to District 43.

(27) The Applicant and the Carleton Board of Education had co-operatively provided and jointly administered a joint Summer School Program for area students during the summers of 1981 and 1982 and had planned to continue their efforts in 1983. Such joint planning involved the pooling of program offerings so that duplication would be avoided and at the same time geographic areas served by the two Boards of Education would be provided with as full a Summer School Program as was possible. The pooling of both the schools of the two Boards and their administrative and manpower resources permitted the two Boards to provide a greater program offering and avoid duplication of programs and other resources incidental to such programs. As a result of the withdrawal of the Carleton Board of Education from the joint Summer School Program offerings and the other restrictions set Out in exhibit 20, the Applicant Board will not be able to provide the varied Summer School Programs which it would otherwise have been able to in co-operation with the Carleton Board without adding programmes and thus increasing the expenditure of public funds which would other­wise be avoided.

(28) On February 17th, 1983 representatives of the Applicant met with representatives of District 26 (the Respondents Callum and Adair). The Respondents informed the Applicant at that meeting that the O.S.S.T.F. and the A.E.F.O. directed their respective memberships not to accept assignments in the spring 1983 terms (May-June 1983), the 1983 Summer School Program and the 1983-84 Night School Program. The Applicant reminded the Respondents that the Applicant considered such action unlawful and referred to exhibit 10.

(29) Confusion existed among members of District 26 and District 43 who were administrators in the Night School Program and administrators in the Summer School Program (Ager, Moar and Harvie) as to whether the pink letter of District 26 and Ottawa A.E.E.O. applied to them. As a result, the Respondent Callum called a meeting of such administrators at his office on February 22nd, 1983 to which all of the evening school and summer school administrators were invited including the Respondents Ager, Harvie and Moar. Mike Weeks and Dennis Murphy, Vice Principal of the Applicant's Continuing Education Program and a member of District 26, were also permitted to attend the meeting held at District 26's office with the Respondents Callum and Adair.

(30) The Respondent Callum on behalf of District 26 asked the members of District 26 who were administrators in the May-June Evening School Program of the Applicant to withdraw from their positions effective May 1st, 1983. The Respondent Callum on behalf of District 26 requested the Respondents Ager, Harvie and Moar to support the pink letter and withdraw from the 1983 Summer School positions. The Respondent Callum clarified that, although the pink letter (exhibit 16) did not clearly state that Evening and Summer School administrators were affected, it was his instruction that they were. Further, the Respondent Callum, indicated that while the pink letter was not in place "officially" until July 1,1983, he requested the Evening School administrators to withdraw from the May '83 Night School. In response to a question from the Evening School administrators the Respondent Callum replied that, if they continued in their positions in May and June 1983, nothing would happen, but if that continued in the September 1983 Continuing Education Program the sanctions would apply and the Affiliate and District 26 would be prepared to take action. The Evening School Administrators indicated that they would complete their assign­ments in May-June 1983.

(31) The Respondent Callum indicated to the Respondents Ager. Moar and Harvie that the pink letter did apply officially to them as Summer School Directors and he wanted their support and withdrawal from the 1983 Summer School of the Applicant. The Respondents Ager, Moar and Harvie indicated that direction had been sought from the Respondent Morris Richardson, General Secretary of the O.S.S.T.F. and, when they had his response. they would advise the Respondent Callum and District 26.

(32) Exhibit 24 contains the communications between the Applicant and the Respondent Ager and between the Respondents Ager and Richardson.

(33) Exhibit 23 contains the written communications between the Applicant and the Respondent Harvie. The Respondent Harvie has been informed by the Respondent Richardson to the same effect as the Respondent Ager.

(34) Exhibit 22 contains the written communications between the Applicant and the Respondent Moar and the Respondent Moar has also received advice from the Respondent Richardson similar to that received by the Respondent Ager.

(35) Exhibit 25 contains the written communications between the Applicant and the Respondent Lamoureux. While the pink letter had been discussed between the Respondent Lamoureux and Dennis Murphy on behalf of the Applicant at the time of Lamoureux's initial interview on February 11th, 1983, the Respondent Lamoureux unconditionally confirmed his accept­ance of the position in writing as set out in his letter of March 7th, 1983 to the Applicant contained in exhibit 25.

(36) On or about February 25th the Respondent Callum on behalf of District 26 sent to members of District 26 exhibit 21.

(37) There are approximately 1,150 O.S.S.T.F. members in District 26 and approximately 450 A.E.F.O. members employed by the Applicant. In any one year, approximately 200-250 of such members may apply for and be accepted as employees to teach in a continuing education program. In most years, the Applicant will place advertisements in the schools and in the press, advertising for summer school positions. Applications are sent in by individual teachers and conditional acceptances are sent to the successful applicants in early April. The conditional accept­ance is conditional upon there being sufficient enrollment for the summer school and during the last part of May and the month of June individual teachers are then advised that there is an unconditional acceptance of the application. In most years, the hiring of teachers for the fall term commencing in September of any year will begin in June with a similar procedure to summer school being followed and conditional offers of employment only being confirmed in mid-September after enrollment is known. By March 1983 it had become clear to all that exhibits 16 and 17 were not intended to apply to the May-June 1983 Night School but did apply to the 1983 Summer School and the 1983-84 Night School commencing September 1983.

(38) The Applicant advertised teaching positions for the 1983 Summer School in substantially the same manner as it had done in the previous years. The deadline for all applications for teaching positions in the 1983 Summer School was February 18, 1983. In a normal year sufficient applications would have been received by such due date to select qualified teachers for the Summer School. For example, by the due date in February 1982, 165 applications had been received. By February 18, 1983, only 6 applications had been received.

(39) The Respondents admit that the effect of the pink letters (exhibits 16 and 17) and other actions of the Respondents in support thereof have deterred O.S.S.T.F. and A.E.F.O. members from applying for employment with the Applicant for the 1983 Summer School Program and for the 1983 Night School Program. The Respondents also admit that the Applicant received in 1983 far fewer applications to teach in the said Continuing Education Program than it otherwise would have normally received. For example, in the 1982 Secondary Summer School of the Applicant, the Applicant employed 122 teachers: 66 of such teachers were members of District 26 and Ottawa A.E.F.O. regularly employed under Statutory Contract by the Applicant; 2 were Elementary Teachers of the Applicant regularly employed under Statutory Contract; 14 were Second­ary teachers employed under Statutory Contract by the Carleton Board of Education and the remaining 40 were not regularly employed by the Ottawa or Carleton Board under the Statutory Contract. To date in 1983, only 10 members of District 26 and Ottawa A.E.F.O. and only 2 Carleton secondary teachers have applied; the remaining applications are from outside the two systems.

(40) Exhibit 27 contains applications for the 1983 Summer School of the Applicant from the Respondents William S. Smith, Geoffrey Burrows and Peter Bangs which applications are contingent on the removal of the O.S.S.T.F. pink letter.

(41) Other teachers who are employed by the Applicant under Statutory Contract (in the form prescribed by Regulation as set out in Exhibit 26) in its regular Day School Program to teach in the Secondary Schools and who are members of the Affiliates A.E.F.O. and O.S.S.T.F. and the Branch Affiliates, District 26 and Ottawa A.E.F.O., would have applied for employment in the 1983 Summer School of he Applicant were it not for exhibits 16 and 17 and the other actions of the Respondent’s set out above. Counsel for the Applicant and the Respondents have agreed that it is not necessary, unless the Board so directs, to produce names of such Contract Teachers in order to render effective any order which the Ontario Labour Relations Board may seek to issue in this matter.

(42) Applications for positions in the fall term of the Evening School portion of the Continuing Education Program are normally not solicited by the Applicant or received by the Applicant until June.

(43) The Respondents have continued since the issuance of exhibits 16 and 17 to encourage support of and obedience to exhibits 16 and 17. Exhibit 30 dated March 31, 1983 was sent by the Respondent Callum to all members of District 26.

(44) Listed in exhibit 26 are the Statutory Contracts of all the Respondents who are employed by the Applicant in its regular Day School Program.

(45) Exhibit 1 contains explanatory material on the 1983 Summer School Program and a Report of the Applicant on the 1982 Summer School Program. Both counsel may orally supplement the explanatory material on the summer school.

Argument

5. The applicant Board argues in the alternative in this matter. The Board argues firstly that the concerted refusal of the secondary school teachers in its employ to teach in its Continuing Education Program is a concerted activity designed to "interfere with the operation or functioning of a school program or school programs or of a school or schools", and is, therefore, a strike within the definition of that term in Section 1(1) of the School Boards and Teachers Collective Negotiations Act. The applicant argues that this strike is unlawful because, contrary to the prohibition contained in section 63 of the School Boards and Teachers Collective Negotiations Act against strikes by teachers where a collective agreement is in operation, the teachers in this case have struck at a time when a collective agreement is in operation. The Board, citing the decision of this Board in Broadway Manor Nursing Home and Fiddick’s Nursing Home Limited, 1983! OLRB Rep. Jan. 26, maintains that by virtue of the provisions of section 13 of The inflation Restraint Act, the collective agreement between the parties to this matter, not just its terms and conditions, continues in full force and effect. The applicant argues further that the decision of this Board in The Board of Education for the City of Windsor, 11978! OLRB Rep. July 699, that the concerted refusal by secondary school teachers employed by the Windsor Board to apply to teach in that Board's Summer School program did not constitute a strike within the meaning of Section 1(1) of the School Boards and Teachers Collective Negotiations Act, can be distinguished. The applicant argues that in the Board of Education for the City of Windsor case supra, there was no collective agreement in operation, as there is in this case, and the elapsed agreement in that case had no reference to the teaching of summer school, as does the instant agreement. The applicant argues that Article 15 of the instant agreement, which is incorporated into the individual contracts of employment, anticipates that these teachers will teach in the Continuing Education Program. The Board argues that in these circumstances the concerted refusal to teach in the Continuing Education Program is a concerted refusal to accept a work assignment and, therefore, is no different than a concerted refusal to work overtime, even where overtime is voluntary under a collective agreement. The Board cites Harding Carpets Limited, 56 CLLC ¶18,030, C & C Yachts Manufacturing Limited, [1977] OLRB Rep. July 433, B.C.L. Canada Inc., [1981] OLRB Rep. July 836, Westeel Rosco Limited, 119811 OLRB Rep. Dec. 1849, MacMillan Bloedel (Alberni) Ltd.. et al. v. International Woodworkers of America, Local 1085 et al, 1970 CanLII 1140 (BC CA), 13 D.L.R. (3d) 741, Associated Clothing Manufacturers and Amalgamated Clothing Workers of' America, (1951) 2 L.A.C. 701 (Finkelman), Printing Specialties and Paper Products Union, 466, and ES. & A Robinson (Canada) Ltd. 1970 CanLII 1641 (ON LA), 21 L.A.C. 354 (Brown), United Steelworkers, Local 2950 and Greening Industries Ltd., 1971 CanLII 1971 (ON LA), 22 L.A.C. 165 (Weatherill) and Atomic Energy of Canada Ltd. and Ottawa Atomic Workers Union, Local 1541 C.L.C. 1978 CanLII 3468 (ON LA), 18 L.A.C. (2d) 302 (Weatherill) in support of the proposition that even though an employee may be entitled to take individual action the taking of that action in concert with other employees may constitute a strike and, therefore, depending on the time as of when the concerted action is undertaken, may be unlawful. In further support of this proposition the applicant referred us to Ha/ton Board of Education and OSSTF District 1978 CanLII 3514 (ON LA), 17 L.A.C. (2d) 279 (Swan), a case dealing with the concerted refusal of secondary school teachers also governed by the School Boards and Teachers Collective Negotiations Act, to apply for positions of responsibility within the schools of that Board. The applicant asks us to adopt the same interpretation of the definition of "strike" under section 1(1) of the School Boards and Teachers Collective Negotiations Act as was adopted in that case and to find, as did the arbitrator in that case, that the concerted action of teachers in refusing a work assignment constitutes a strike within the meaning of the definition. In summary, the applicant argues that although teachers are permitted to refuse to teach in the Continuing Education Program on an individual basis, the concerted refusal to teach in that program, at a time when a collective agreement is in operation which anticipates that the teachers covered by it will teach in that program, is an unlawful strike under the School Boards and Teachers Collective Negotiations Act and should be found to be so.

6. The applicant argues in the alternative that if the concerted refusal in this case is not found to be an unlawful strike within the meaning of the School Boards and Teachers Collective Negotiations Act then it is a strike under the Labour Relations Act. The applicant reminds us that this argument was not advanced in the Board of Education for the City of Windsor case, supra and has never before been considered by this Board. The Board argues that even if we follow the general approach taken in the Board of Education for the City of Windsor, supra, the teachers who are engaging in the concerted activity in this case are nevertheless employees of the Board and as such are governed by the Labour Relations Act. Because a person who teaches in the Continuing Education Program is not a teacher within the definition of "teacher" in section 1(m) of the School Boards and Teachers Collective Negotiations Act and, therefore, is not excluded from the operation of the Labour Relations Act by virtue of section 2(f) of that Act, the Board maintains that such a person is an employee under the Labour Relations Act in respect of the Continuing Education Program. Section 2(f) states that the Labour Relations Act does not apply to a teacher as defined in the School Boards and Teachers Collective Negotiations Act. Board of Education for the Borough of Etobicoke, I 1977! OLRB Rep. July 415, The Board of Education for the City of Toronto, February 14, 1983, as yet unreported and The Brant County Board of Education, October 9, 1981, unreported are cited in support of the position that teachers are considered to be employees within the meaning of the Labour Relations Act if not excluded from the operation of the Act under section 2(f). The applicant argues that although these teachers may not be teachers within the meaning of a "teacher" under the School Boards and Teachers Collective Negotiations Act they are nevertheless employees within the meaning of the Labour Relations Act and as such they are prohibited under the Labour Relations Act from refusing in concert, to undertake a work assignment. The applicant argues that the teaching of Summer School in the Continuing Education Program is a work assignment, analogous to an overtime assignment in any other work setting. The Board relies on the fact that there are no bargaining rights outstanding in respect of teachers assigned to teach in the Continuing Education Program and argues therefore, that the preconditions to a legal strike or lockout under section 72 of the Labour Relations Act have not been satisfied. In these circumstances, the applicant asks us to find that the concerted refusal to teach in its Continuing Education Program is an unlawful strike under the Labour Relations Act.

7. The respondents ask us to adopt the approach followed in Re Board of Education for the City of Windsor, supra. The respondent asks us to find that the School Boards and Teachers Collective Negotiations Act regulates the relations between teachers and school boards in respect of the regular day courses taught during the regular school year and that accordingly, a concerted refusal to apply for employment as a summer school teacher is not a strike within the meaning of that statute. The respondents argue that this case cannot be distinguished from the Board of Education for the Citi' o,t Windsor, supra. The respondents argue that article 15 of the instant collective agreement. unlike the language in the agreement considered in Re International Longshoremen’s Association Local 2730 et al v. Maritime Employers Association et al 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289 (S.C.C.) does not create any obligation on the respondents to provide teachers for the Continuing Education Program or upon individual teachers to apply for positions in the Continuing Education Program. Although the respondents argue that section 13 of Bill 179 does not extend the collective agreement, but only its terms and conditions, they ask the Board to avoid making a determination in this regard (because the issue is presently before the Education Relations Commission) unless it is necessary to do so in order to decide this case. The respondents reject the analogy to a concerted refusal to work overtime, arguing that it is one thing to refuse in concert an assignment of work within the bargaining unit and quite another matter to refuse in concert an assignment that takes employees outside the bargaining unit and requires a change in employment status. It is the respondents' position that the Board cannot assign a secondary school teacher employed in its regular day school to teach in its Continuing Education Program. The respondents argue that the award of Professor Swan in Halton Board of Education, supra, does not assist the applicant because the concerted refusal in that case was in respect of a position within the ambit of the School Boards and Teachers Collective Negotiations Act. The respondents ask this Board to find that the concerted refusal of the secondary school teachers employed by the Ottawa Board of Education to apply to teach in the Board's Continuing Education Program is not a strike within the meaning of that statute.

8. The respondents also maintain that the concerted refusal to apply for positions in the Continuing Education Program is not a strike within the meaning of the Labour Relations Act. The respondents argue that a strike under the Labour Relations Act involves a concerted refusal by employees and, accordingly, where the persons who are refusing in concert have not entered into employment, the concerted activity cannot be a strike. The respondents argue that the persons taking concerted action are employees under the School Boards and Teachers Collective Negotiations Act and are, therefore, excluded from the Labour Relations Act until such time as they are hired outside of the School Boards and Teachers Collective Negotiations Act. The respondents reject the submission of the applicant that an employee, regardless of the nature of his employment, is necessarily an employee within the meaning of the definition of strike under the Labour Relations Act. The respondents maintain that where persons have not yet entered into an employment relationship in respect of the work in question, as the teachers in this case have not yet done in respect of the 1983 summer program, there is no prohibition in the Labour Relations Act against a concerted refusal to enter into the employment relationship. In this regard, counsel for the respondents reminds this Board that the "pink letters" caution teachers against applying for or accepting employment.

9. The respondents reject the submission of the applicant that section 70 of School Boards and Teachers Collective Negotiations Act, which allows teachers to withdraw voluntary services on an "individual basis", precludes a concerted refusal to apply for a different type of employment with the Board. The respondents argue that the voluntary services referred to in section 70 are services which are directly related to the operation of the regular day school, such as coaching and other extra curricular activities, and not teaching outside the ambit of the statute. However, the respondents argue that when section 18(1)(c) of Ontario Regulation 63/55 under the authority of the Teaching Profession Act is read in conjunction with section 51 of School Boards and Teachers' Collective Negotiations Act, statutory support can be found for the concerted refusal which occurred in this case. Section 18(1)(c) of Ontario Regulation 63/55 under the authority of the Teaching Profession Act provides that "a member shall refuse to accept employment with a Board whose relations with the Federation are unsatisfactory." Section 51 of School Boards and Teachers Collective Negotiations Act provides that the provisions of any Act prevail over the collective agreement. Finally, the respondents argue that where the employer insists on dealing individually with applications for employment to the Continuing Education Program and refuses to acknowledge that the bargaining agent has any authority to negotiate the terms and conditions of employment of those in the program, it would be inconsistent to find that it can deal collectively with teachers refusing in concert to apply to teach in the program.

10. The applicant makes a number of points in reply. The applicant argues that where the union has in the past tabled extensive demands in respect of the work in question, and where it is specifically dealt with under the collective agreement in the manner that it has been, the work must be characterized as a priority assignment and not as new employment. The complainant sees this as the essential distinction between this case and the Windsor Board of Education case, supra and argues that the Halton Board of Education award, supra, is of assistance to it because in that case, as with this, teachers refused in concert to accept a work assignment, which, as individuals, they were entitled to refuse. The applicant argues that just as the concerted refusal in the Halton Board of Education case, supra, was found to be a strike within the meaning of the School Boards and Teachers Collective Negotiations Act so also should the concerted refusal in this case be found to be a strike within the meaning of that statute. The applicant also relies on the Halton Board of Education award as authority for the proposition that section 18(1)(c) of Ontario Regulation 63/55 passed under the authority of the Teaching Profession Act does not permit the concerted action engaged in this case. The applicant reads the Halton award as limiting the application of section 18(l)(c) of Ontario Regulation 63/55 passed under the authority of the Teaching Profession Act to situations where there are unsatisfactory relations between the Ontario Teachers' Federation (the parent body of the respondents) and a board. The applicant reiterates that what it is faced with in this matter is a concerted refusal by its employees to accept a work assignment, on instruction from their union, which, if done by any other union, or any other group of employees, would be illegal. The applicant maintains that the difficulty in this case is not deciding whether or not the persons who acted in concert are its employees, which clearly they are, but rather in deciding under which Act their concerted refusal constitutes a strike. The applicant asks us not to follow the course which the respondents suggest but to view the two statutes (the School Boards and Teachers Collective Negotiations Act and the Labour Relations Act) as an integrated whole so that secondary school teachers, as with all other employees, are prohibited from engaging in concerted activity prior to becoming certified or during the operation of a collective agreement.

Decision

11. We will determine firstly if the concerted activity in this case constitutes an unlawful strike within the meaning of the School Boards and Teachers Collective Negotiations Act. In making this determination we focus on the definition of strike contained in section 1(1) of that Act. If the concerted activity in this case does not fall within that definition then, regardless of whether or not there is a collective agreement in operation, it cannot be an unlawful strike within the meaning of that Act. For the moment, therefore, we do not have to consider the meaning of section 13 of Bill 179 and whether or not its effect is to extend the collective agreement which governs the relations between the parties to this matter.

12. A "strike" is defined in section 1(1) of the School Boards and Teachers Collective Negotiations Act as:

"strike" includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed to curtail, restrict, limit or interfere with the operation or functioning of a school program or school programs or of a school or schools including, without limiting the foregoing,

(i) withdrawal of services,

(ii) work to rule,

(iii) the giving of notice to terminate contracts of employment.

13. This Board put its mind to the scope of the statutory definition of "strike" in the School Boards and Teachers Collective Negotiations Act in the Board of Education for the City of Windsor case, supra. In that case the Board was asked to decide an issue similar to that which is before the Board in this case; namely, whether the concerted refusal of secondary school teachers to teach in a summer school program constituted a strike within the meaning of the School Boards and Teachers Collective Negotiations Act. The Board observed in that case that (under what is now section 54 of the School Boards and Teachers Collective Negotiations Act) a collective agreement between a board and a branch affiliate is deemed to form a part of the statutorily imposed contract of employment between the Board and each teacher, that the contract does not envisage teaching duties other than during the regular year, that there is no reference anywhere in the Act to summer school programs and that "the whole scheme of the Act is designed to focus on relations between teachers and school boards during the course of the regular school year (as defined in the Education Act). The Board in finding that the concerted activity in the Board of Education for the City of Windsor case did not constitute a strike within the meaning of section 1(1) of the School Boards and Teachers Collective Negotiations Act, concluded that:

Where the Legislature throughout the statute has directed itself solely to collective bargaining facets concerned with teachers and boards integral to the regular school year it would, in our view, in the absence of explicit language, be wrong to consider that the Legislature in this one section of the Act (Section 1(1)) intended to refer to school programs or schools other than those to which the Act in general applies."

The ratio of the decision, therefore, is that programs which do not form part of the regular school year are not school programs or schools within the meaning of section 1(l) of the School Boards and Teachers Collective Negotiations Act and, therefore a concerted decision by teachers to interfere with the operation of these programs by refraining from offering their services in respect of these programs is not a strike within the meaning of that Act.

14. The applicant argues that we should distinguish this case from the Board of Education for the City of Windsor case, supra, because of the inclusion of Article 15 in the collective agreement between the parties. Where section 8 of the School Boards and Teachers Collective Negotiations Act stipulates that "Negotiations shall be carried Out in respect of any term or condition of employment put forward by either party", where a collective agreement is defined in section 1(b) of the School Boards and Teachers Collective Negotiations Act as an agreement"... covering matters negotiable under this Act" and, where section 54(1) of the School Boards and Teachers Collective Negotiations Act provides that "an agreement between a board and a branch affiliate shall be deemed to form part of the contract of employment between the board and each teacher who is a member of the branch affiliate", it could be argued that provisions in a collective agreement pertaining to the staffing of a school program outside the range of school programs which make up the regular school year bring that program within the ambit of the School Boards and Teachers Collective Negotiations Act. Even if we were to conclude that the parties could extend the meaning of "school program" or "school" in section 1(1 of the School Boards and Teachers Collective Negotiations Act by executing a collective agreement which deals with subject matters that are otherwise beyond the meaning of those terms as used in that section, this result, insofar as it affects the meaning of these terms in section 1(1) of the School Boards and Teachers Collective Negotiations Act, would depend on the contractual language used. More specifically (and irrespective of the right of an individual teacher to refuse), the language would have to establish an obligation on the part of the teachers covered by it to staff the program in question. Without making a finding as to whether or not the parties can expand the meaning of the term "school program" or "school" in section 1(1) of the School Boards and Teachers Collective Negotiations Act beyond that found in Re Board of Education for the City of Windsor, supra, it is our view, for the reasons set Out in paragraphs 21, 22 and 23 of this decision, that the language of article 15 of the instant collective agreement would not cause this result in any event. There is nothing before us, therefore, to cause us to broaden the meaning of the term "strike" in the School Boards and Teachers Collective Negotiations Act, as it applies to this matter, beyond that ascribed to it in the Board of Education for the City of Windsor case, supra.

15. Where the terms "school program" and "school" in the statutory definition of strike refer to school programs and schools carried on in connection with the regular school year, the analogy to a concerted refusal to work voluntary overtime does not hold up. In those cases where a concerted refusal to work voluntary overtime has been found to be a strike under the Labour Relations Act the concerted refusal has been in respect of work falling within the definition of strike contained in the Labour Relations Act. In this case the work in question is beyond the ambit of the statutory definition of strike upon which the applicant seeks to rely in making its first argument. Furthermore, where teachers refuse in concert to perform activities in respect of "school programs" or "schools" as these terms are used in the definition of "strike" in the School Boards and Teachers Collective Negotiations Act, as did the teachers who refused to apply for positions of responsibility in the Halton Board of Education case, supra, their refusal falls within the definition of strike in section 1(l) of the School Boards and Teachers Collective Negotiations Act. In our case, however, the concerted refusal was not in respect of a "school program" or "school" within the meaning of section 1(1) of the School Boards and Teachers Collective Negotiations Act and, therefore, the Halton Board of Education award, supra does not assist the applicant.

16. Before proceeding to the alternative position advanced by the applicant, we wish to deal with its submission that section 70 of the School Boards and Teachers Collective Negotiations Act should be read as prohibiting a concerted refusal to teach in its Continuing Education Program. The section reads:

Nothing in this Act precludes a teacher,

(a) from terminating his employment with a board in good faith in accordance with the provisions of his contract of employment;

(b) from withdrawing a voluntary service in good faith on an individual basis.

We have found that the reference to the school programs and schools in the definition of "strike" at section 1(1) of the School Boards and Teachers Collective Negotiations Act is restricted to school programs and schools operated during and in connection with the regular school year. It follows that the voluntary services referred to in section 70 of the School Boards and Teachers Negotiations Act are those which are offered during and in connection with the regular school year, such as coaching and other such voluntary undertakings. Section '70, therefore, does not assist the applicant in this matter.

17. The respondents argue that section 18(1 )(c) of Ontario Regulation 63/55 passed under the authority of the Teaching Profession Act should be read as permitting the concerted activity which occurred in this case. The regulation reads:

18(1) A member shall

(c) refuse to accept employment with a board of trustees whose relations with the Federation are unsatisfactory.

We need do no more in responding to the respondent's position in this regard than set out the response to that argument as found at page 285 of the Halton Board of Education and Ontario Secondary School Teachers' Federation. District 9 arbitration award:

Finally, the branch affiliate advances an argument based on ss. 18(l)(c) and 18(2) of 0. Reg. 63/55, passed under the authority of the Teaching Profession Act, R.S.O. 1970, c. 456. There are a number of technical difficulties as to the precise status of that Regulation, and as to its precise meaning in relation to the present case, but we do not need to canvass those here. Quite simply a Regulation, although passed under statutory authority, is not on the same footing with a statute, and no Regulation can confer on anyone a right to do something which is prohibited by another statute, or is (as is here the case) required by that statute to be proscribed by the terms of every collective agreement. A collective agreement cannot override a Regulation; but a statutory clause in a collective agreement must, if the purpose of the statute is not to be defeated. As a consequence, whatever 0. Reg. 63/65 means, it cannot justify a breach of the clear provisions of the Act.

18. We now turn to the alternative position of the applicant; that is, if the concerted refusal in this case does not constitute a strike within the meaning of the School Boards and Teachers Collective Negotiations Act it must constitute a strike within the meaning of section 1(1 )(o) of the Labour Relations Act. A strike is defined in section 1(1)(o) of the Labour Relations Act as follows:

"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.

The threshold issue to be decided is whether the secondary school teachers who refused in concert to apply for positions in the applicant's Continuing Education Program are employees within the meaning of the statutory definition at the time of their concerted refusal. The applicant takes the position that these teachers are its employees for all purposes and, therefore, any concerted refusal in respect of any work assignment beyond the ambit of the School Boards and Teachers Collective Negotiations Act constitutes a strike within the meaning of that term under the Labour Relations Act.

19. We do not accept that every employee, regardless of the nature or location of his employment at any given time, is an employee within the meaning of the statutory definition of the term "strike" in the Labour Relations Act in respect of any and all work assignments which might be given to him by his employer. For example, a unit of production employees working at a plant in city "A" and covered by a collective agreement restricted in its geographic scope to city "A", with no reference to work assignments beyond city "A", can hardly be considered employees within the meaning of section 1(1)(o) of the Labour Relations Act in respect the work performed at another plant of the same employer located in city "B". There is a direct nexus between the term "work" and the term "employee" in the definition of "strike" under the Labour Relations Act. Employees within the meaning of the statutory definition of "strike" are those who are under an obligation, as a group, to perform the work in respect of which there is a concerted refusal. If a person has not yet become an employee at common law or, if an employee at common law but the work in question is beyond the scope of the employment relationship he is not an employee within the definition of "strike" in section l(l)(o) of the Labour Relations Act for purposes of deciding if a concerted refusal to perform that work is a strike within the meaning of that Act. The term "strike" is defined under the Labour Relations Act to fit within a scheme which protects an employer from a concerted refusal to work (except at certain prescribed times) by those who are under an obligation to perform the work. The scheme was not designed to provide an employer with the means to compel persons who are refusing in concert to perform work which is beyond the scope of their employment relationship.

20. In this case we have come to the conclusion that the respondent teachers were not employees of the applicant in respect of its Continuing Education Program within the meaning of section l(1)(o) of the Labour Relations Act at the time of their concerted refusal to apply for teaching positions in that program. The fact that they were required to, but had not yet, entered into new contractual relations with the applicant in respect of the Continuing Education Program suggests this to be the case. However, the requirement to enter into new contractual relations is not determinative. If there existed an obligation, either stated or implied, arising from the terms of their employment relationship that the work would be done by these employees then, regardless of whether or not they had the right to refuse as individuals, they might well be employees within the definition of "strike" in section 1(1)(o) of the Labour Relations Act, refusing in concert to (Jo work within the meaning of that definition.

21. In order to determine if such an understanding exists we must look to article 15 of the collective agreement. Clearly, without article 15 the applicant would have no grounds upon which to assert that there exists an obligation upon the respondents to staff the Continuing Education Program. Article 15 provides:

CONTINUING EDUCATION

15.01 The Parties agree that the rates for Continuing Education Teachers and administrators who are covered by the provisions of this Collective Agreement and who teach credit subjects at the secondary level will not be amended except by mutual agreement.

15.02 A list of proposed Continuing Education teaching positions will be made available to Teachers in the service of the Employer prior to outside advertisement. The Employer will give preference to existing staff who are qualified for the available Continuing Education positions and priority to redundant Teachers identified for lay-off under the provisions of Article 18.

In our view, this language, while it creates a benefit for the teachers covered by the collective agreement, does not create an obligation upon these teachers to staff the Continuing Education Program such that a refusal in concert to enter into new contractual relations in respect of these positions would constitute a strike within the meaning of the Labour Relations Act. There is no express obligation here, as there was in Re International Longshoremen’s Association Local 273 et al v. Maritime Employers' Association et al, supra, nor is there an implied obligation as exists in respect of overtime work within the bargaining unit.

22. The International Longshoremen’s Association, Local 273 et al. v. Maritime Employers' Association et al, supra, while not on all fours with this case, where the persons refusing are already employees of the employer at common law, is instructive because it deals with contract language which creates an express obligation to perform certain work and the interrelationship between that obligation and a statutory definition of "strike" which is identical in all material respects to that contained in the Labour Relations Act. In that case the Supreme Court entertained an appeal from an injunction issued against three trade unions who had refused to supply labour although party to a collective agreement which contained a hiring hall arrangement under which the unions undertook to supply labour and the employers undertook to) employ those referred under the agreement under terms and conditions of employment specified in the agreement. The injunction was challenged on the principal ground that there were no employees of the respondents at the time of the application for injunction who refused work within the meaning of the definition of strike; i.e., those who were refusing to work were not yet employees. The Supreme Court capsulized the import of the relevant contractual provisions as follows at page 292:

"In each agreement the locals undertake and agree to supply the labour required by the members of the association and the association in turn agrees to assign the work as described in the collective agreement to members of the locals so long as they are recognized by certification."

In dismissing the contention of the trade union that at the critical times there were no employees of the Association who could have engaged in a strike, the Court commented at page 293:

“The pattern established by the agreements is simple. When a participating employer of stevedores requires labour for the un­loading of vessels, the employer notifies the local in the manner prescribed by the agreement and the local assigns to that employer the work forces required. The agreements by detailed provisions, - establish the method of computing the pay and the procedure for regulating the hours worked by each member of the local for the employer company. Thus in a technical sense, the relationship of employee-employer as it is recognized in the common law, may not arise until the member of the local has reported to the requisitioning member of the Association for work in the Port of Saint John. Beyond that technical basis, the argument has no merit. When these collective agreements were signed by the officers of the Association and the officers of the Locals, all the parties to the agreements recognized the peculiar or particular characteristics of the steve­doring business in the Port of Saint John: the local for its part undertook to supply the required labour, and the Association, on behalf of its member employers, undertook to assign stevedoring work only to members of the Locals. The agreements in their entirety are predicated upon this relationship and on the fact that labour would be required only when work was available to be performed and that hence the remuneration would be paid to members of the Locals only when services are requisitioned by the Association members pursuant to the terms of the collective agreements. For the purposes of collective bargaining and labour relationships under the resulting collective agreements. members of the Association and members of the Locals were respectively employers and employees from the onset of the agreements. whatever their rights and obligations may or may not include under the common law of master and servant/'

23. The judgment provides us with a very useful backdrop against which to assess the obligation, if any, upon the teachers covered by Article 15 of the instant collective agreement to staff the Continuing Education Program. such that a concerted refusal on their part to do so would constitute a “strike" within the meaning of the Labour Relations Act. No such obligation can be read into article 15 of the instant collective agreement. An agreement that rates which have been unilaterally established by the applicant will not be amended except by mutual agreement and a further agreement that the teachers covered by the collective agreement will be given preference in the filling of positions in the Continuing Education Program, or priority if on layoff, cannot be read as creating an obligation upon the respondents or their members to staff the applicant's Continuing Education Program. We are satisfied, therefore, that the teachers who are refusing in concert to apply for positions in the applicant's Continuing Education Program are not employees in respect of the Continuing Education Program nor do they have an express or implied obligation to perform the work, and, therefore, their concerted refusal to apply to teach in the Continuing Education Program is not a “strike" within the meaning of section 1(1)(o) of the Labour Relations Act. In this regard the teachers in this cm are no different than any other persons who refuse in concert to either accept employment or accept a work assignment that is clearly beyond the bounds of their employment relationship.

24. In summary, we have found that the applicant's Continuing Education Program cannot in this case be found to be a program or a school within the meaning of the term “school program ... or school" in the definition of “strike" in the School Boards and Teachers Collective Negotiations Act and, therefore, the concerted refusal of the teachers under contract to teach in its regular day school program to apply to teach in its Continuing Education Program, is not a strike within the meaning of that Act. We have also found that these teachers are not yet employees of the applicant in respect of its Continuing Education Program and, are under no obligation to staff the applicant's Continuing Education Program, so that, their concerted refusal to apply to teach in the Continuing Education Program does not constitute a strike within the meaning of the Labour Relations Act.

Having regard to all of the foregoing this application is hereby dismissed.