Ontario Public Service Employees Union v. The Board of Education for The City of Toronto, 1983 CanLII 929

[1983] OLRB Rep. March 466

1833-82-U Ontario Public Service Employees Union, Complainant, v. The Board of Education for The City of Toronto, Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members P. J. O'Keeffe and W. H. Wightman.

APPEARANCES: Chris Paliare, Pauline R. Seville and Ivor Oram for the complainant; B. H. Stewart, E. N. McKeown and C. Wooding for the respondent.

DECISION OF VICE-CHAIRMAN R. A. FURNESS AND BOARD MEMBER W. H. WIGHTMAN; March 4, 1983

1. The complainant has complained that it has been dealt with by the respondent contrary to sections 3, 64, 66 and 70 of the Labour Relations Act. The complainant specifically alleges that on or about December 15, 1982, it was dealt with by Edward N. MeKeown, the Director of Education for the respondent, contrary to sections 3, 64, 66 and 70 of the Act in that he did on his own behalf or on behalf of the respondent send a letter, a copy of which was attached to each of the schools which are part of the respondent. The complainant takes the position that the information contained in the letter is wrong and contrary to the Act.

2. In a letter dated January 11, 1983, the respondent adopted the position that the complaint was frivolous and vexatious and that the allegations were so lacking in specify as to preclude proper preparation for hearing and a proper reply. The respondent requested particulars and specifically inquired what information contained in the letter dated December 15, 1982, was alleged to be wrong and contrary to the Act and how did the information contained in the letter relate to the sections of the Act which the complainant had referred to in its complaint. The respondent also requested to know on which subsections of section 66 the complainant relied.

3. In a letter dated January 21, 1983. the complainant complained that the dissemination of the letter in question by Dr. McKeown was in and of itself a violation of the Act. It was also the position of the complainant that Dr. McKeown knew or ought to have known that each of the principals of the schools to which it was sent would act upon the letter and disseminate the information to the staff of the schools in question. The complainant advised the Board that the letter dated December 15, 1982, was seen by the following individual supply teachers on the following dates:

4. Ms. Marci Tanzer was handed the circular by the secretary at the front office of King Edward Public School on or about December 20 or 21, 1982.

5. Ms. Sharon Campbell saw the circular on January 17, 1983, at Perth Avenue Public School attached to the supply teacher sign-in book on the counter of the main office.

6. Ms. Sharon Bloom saw the circular in the afternoon of January 21, 1983, at Dovercourt Public School posted on the office bulletin board.

7. The letter (or circular) dated December 15, 1982, states:

THE BOARD OF EDUCATION

FOR THE CITY OF TORONTO

December 15, 1982

WEEKLEY CIRCULAR #82-83:16 SUPPLEMENT

SECTION 1: INFORMATION FOR PUBLIC AND SECONDARY

SCHOOLS

OCCASIONAL TEACHERS - UNION ORGANIZATION

As you know, the Ontario Public Service Employees Union is currently attempting to organize occasional teachers employed by the Board for collective bargaining purposes. Occasional teachers have the right to join a union and participate in its lawful activities. However, solicitation for union membership should not take place during the school day on school premises. At the same time, any form of persuasion against union membership should not take place during the school day on school premises. Employees engaging in any solicitation of support, either for or against union membership, are advised that they will be subject to discipline. Names and addresses of occasional teachers are not to be given to or made available to anyone for any reason other than for the proper operation and management of the school. Such information is private, both to the Board and to the individual occasional teachers. The Board, by policy, has not and will not provide occasional teacher lists to any outside organization.

We hope the above clarifies the Board's position and answers many of the questions which have come forth arising out of the union organizing campaign. The Board's position is not to interfere with the organization of the trade union for occasional teachers.

Questions to principals could arise — re what the process is all about, what would be in the best interest of the occasional teacher in terms of future employment with the Board. Principals, of course, ought not to promote or discourage union membership of occasional teachers. It may be appropriate for principals to indicate that the decision as to union membership is a serious one — that the decision should be made with full knowledge as to the union constitution and by-laws — that occasional teachers ought to clearly know what their rights and responsibilities are as a union member which, of course, includes union dues and initiation fees.

Edward N. McKeown

Director of Education

5. The instant complaint was filed on December 23, 1982. On January 18, 1983, the respondent sent a further letter to its elementary and secondary schools. This second letter was distributed to the schools and posted in the same manner as the letter or circular dated December 15, 1982. The letter or circular dated January 18, 1983, states:

THE BOARD OF EDUCATION

FOR THE CITY OF TORONTO

January 18, 1983

WEEKLY CIRCULAR #82-83: 18 SUPPLEMENT

SECTION 1: INFORMATION FOR PUBLIC AND SECONDARY SCHOOLS

OCCASIONAL TEACHERS - UNION ORGANIZATION

On December 15, 1982 a supplementary weekly circular was issued to public and secondary schools respecting occasional teachers and union organization. The circular (#82:83:16) concerned the current organizing attempt by the Ontario Public Service Employees' Union to be certified by the Ontario Labour Relations Board as the bargaining agent for occasional teachers.

That circular stated that occasional teachers have the right to join a trade union and participate in its lawful activities, however, solicitation for or against union membership should not take place doing the school day on school premises and employees engaging in such activity would be subject to discipline. This statement was made to avoid any disruption in the instruction, supervision and safety off the students in our charge.

The purpose of this circular is to further clarify the Board's position in this matter. Accordingly, please be advised that:

(1) While employees are on their own time during the school day, they are free to exercise their rights under the Labour Relations Act. Specifically, employees can discuss and attempt to persuade other employees to become or refrain from becoming or continuing to be a member of a trade union while on their own time at school, providing this does not interfere with the work of other employees and/or the students' programme.

(2) The Labour Relations Act gives occasional teachers the right:

To organize themselves; To form, join and participate in the lawful activities of a trade union; To act together for collective bargaining; To refuse to do any and all of these things.

We assure all of our occasional teachers that WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

Principals are again advised they ought not to promote or discourage union membership for occasional teachers.

Please make certain this circular is posted similarly to the circular of December 15, 1982 SO that occasional teachers and others will be aware of it.

EDWARD N. MCKEOWN,

Director of Education.

6. Dr. McKeown gave evidence before the Board. There are one hundred and sixteen elementary schools, thirty secondary schools and a number of alternate schools and special schools in hospitals within the jurisdiction of the respondent. Each elementary school and secondary school has a principal and all secondary schools have a vice-principal to a maximum of four. Approximately half of the elementary schools have vice-principals. Principals and vice-principals in secondary schools are affiliated for professional and collective bargaining purposes to the Ontario Secondary School Teachers Federation (OSSTF). Principals and vice-principals in elementary schools for professional and collective bargaining purposes are affiliated to either the Federation of Women Teachers of Ontario or the Ontario Public School Teachers Federation.

7. The principal is the chief management officer of the school and is responsible for the conduct of the school. The weekly circular or letter referred to previously is the official medium of communication to principals and vice-principals and teachers. Approximately eight hundred copies are circulated to the schools with the number of copies to each school being dependent upon the size of the school.

8. Occasional teachers are employed in both elementary and secondary schools to replace a regular teacher who is absent. The period of absence may vary from half a day to one hundred and ninety-three days. Occasional teachers may be used in any location for varying periods of time. Dr. McKeown was aware in December of 1982 that the complainant was attempting to organize the occasional teachers. Dr. McKeown holds meetings every Monday morning. These meetings last about three hours and are attended by the principal officers of the respondent. Those in attendance are: Dr. McKeown, two associate directors, five senior staff in the central office, and four area superintendents (who are responsible for the elementary and secondary schools in their area).

9. One of these meetings was held on December 6, 1982. During such meetings, the area and division report'. are presented and each area superintendent has an opportunity to make a statement of interest or concern. Three of the area superintendents reported that principals had expressed concern to them about occasional teachers involved in associated duties or in meeting their professional duties and responsibilities being distracted by persons who wished to discuss the formation of a bargaining unit. As a result of this information; Dr. McKeown directed Mr. Halford, the Associate Director of Education — Operations (part of his responsibility is to look after the weekly letter or circular) to see that the document referred to in paragraph four was sent out within the weekly communication.

10. The minutes of the meeting on December 6, 1982, are now set forth:

PRINCIPAL OFFICIALS MEETING

December 6, 1982 - 9:00 a.m.

PRESENT: Dr. McKeown (Chairman), M. Darnley, C. Taylor, M. Rose, W. McLaughlin, H. Banks. H. Sissons, B. Snell, D. Rutledge, R. Halford, D. Paton, G. Hayes, W. Wells and R. Pickering.

Prior to the meeting, the Principal officials viewed the film "Energy - A Time for Learning."

AREA & DIVISION REPORTS

G. Hayes reported receipt of a circular, forwarded to all former members of Schedule II staff association (Levels 7—14) inviting them to a meeting on December 15th for the purpose of organizing a "management group" association. Dr. McKeown said he had some concerns about the outcome of the meeting since it was his understanding that there would be no official "recognition" of this group of staff by the Board. As a consequence of these concerns, the Director has asked B. DeGraaf to discuss the matter with W. James.

G. Hayes also reported that a number of principals of elementary schools have been approoched by union oraganizers for lists of names of supply teachers. As well, some organizers have attempted to enter schools to facilitcoc the nocess. Dr. McKeown noted that under the Labour Relation.s Act, Ilic Board is not obliged to facilitate organization of a union during working hours. He requested R. Halford to prepare a suitable notice for insertion in the Weekley Circular.

(emphasis added)

M. Darnley reported that, as requested by the Business Administration Committee, the Special Education Dept. is in process of undertaking a transportation survey.

C. Taylor reported that the matter of financial assistance for students of CALC has been raised. Since the students are over 21 years of age, the students apparently do not qualify for such assistance. Dr. McKeown requested that C. Taylor place this item on the agenda for a future meeting of P.O.'s.

C. Taylor indicated the Energy Probe has prepared a speaker's roster and wishes to forward it to the heads of science and geography. There is a $50. charge for utilizing any resource persons. Dr. McKeown indicated that when the list is forwarded to schools it be clearly indicated that the cost of such resource persons must be a charge against school funds.

C. Taylor reported he has received a proposal from a telephone equipment company regarding equipment which will make up to 500 telephone calls automatically and deliver a prerecorded message. Dr. McKeown suggested that C. Taylor organize a small group, including representatives of the two principals' associations, to look at the equipment and report thereon.

M. Rose reported that the survey on vacant school space has been completed and it was decided that the Area Superintendents would review the report for "glaring errors." It was agreed that the space survey responses should be "dated" to indicate the status of space as of a given time.

11. The wording in the letter dated December 15, 1982, was prepared by the respondent's personnel department in consultation with the respondent's counsel. It was the concern of Dr. McKeown that the educational programme of the students not be disrupted and that teachers involved in associated duties not be distracted. He was also concerned for the safety of students with respect to school yard duties. Dr. McKeown described the duties of regular or occasional teachers in elementary schools. Teachers may be assigned by the principal to yard duty which involves the supervision of pupils while in the school yard outside the school building. Teachers may also be assigned basement duties (where washrooms are located in the basement), hall or stair duties when students move from one location to another, and lunchroom duty. Such duties may be assigned at any time from fifteen minutes before classes commence until thirty minutes after school finishes. It is necessary to prepare activity for the classroom, and teachers have a responsibility and an obligation to see that assigned work is checked or marked. There is a significant amount of time a teacher must spend other than on assigned duties. It is common practice for teachers to use time to prepare material, mark assignments or write material on the blackboard.

12. The expectation in the respondent's schools is that regular teachers will have left an outline of work to be done so that the occasional teacher will carry on with the plan. Many occasional teachers will have with them prepared lessons or assignments which, if necessary, they can use in the classroom where the regular teacher has not left plans for the day. Occasional teachers more than regular teachers find it necessary to work marking assignments during the day. In the junior elementary schools there is a recess period in the morning and one in the afternoon. In the secondary schools and senior elementary schools regular teachers are engaged in classroom assignments for six of the eight periods in a day. Of the two remaining periods, one period is on call and the regular teacher may be called upon by the principal to fill in as required. The other period is designated as a preparation period which the teacher could use to prepare work or mark assignments.

13. In the spring of 1982, Dr. McKeown was aware that other organizations were interested in representing occasional teachers. These organizations were the Metro Association of Supply Teachers (MAST), the Toronto Union of Supply Teachers (TUST), and the elementary and second school federations referred to earlier. During negotiations for agreements during the 1981- 82 school year, these federations had indicated during presentations an interest in representing long-term occasional teachers. MAST and TUST had approached the respondent and asked for lists of names and addresses of occasional teachers so that they might approach them. The position of the respondent was that such lists should not be made available. The respondent adhered to the view that while it did not wish to discourage representation of its employees, it did wish to preserve the privacy of the occasional teachers. With these principles in view, the respondent proposed to enclose notices with its employees' paycheques if both MAST and TUST agreed. These two organizations did not agree and the notices were not sent to the occasional teachers. The employees of the respondent are highly organized and there are eighteen groups or bargaining units. Approximately ninety per cent of its employees are organized and represented by trade unions or other organizations. These bargaining units variously encompass groups of employees such as craft maintenance workers, upholsterers, caretakers, drivers, cafeteria workers, psychologists and social workers, clerical and administrative workers, speech and physical therapists and regular teachers.

14. It was the view of Dr. McKeown that the second long paragraph in paragraph five expressed the respondent's philosophical bent towards the representation of its employees. The last paragraph in paragraph four referred to questions that school principals had been asked. The intent of the letter dated December 15, 1982, according to Dr. McKeown, was that the principals were directed to be as neutral and evenhanded as possible, especially since the principals were members of one of two organizations seeking to represent the occasional teachers. Dr. McKeown gave evidence that there was no intention to restrict or prohibit the solicitation of teachers on school premises on their own time. It was Dr. McKeown's position that the letter dated January 18, 1983, represented the position he had intended to set forth in the letter dated December 15, 1982. The respondent has not received any request for clarification of its letter or circular dated December 15, 1982, from either the complainant or an occasional teacher. The respondent has not taken any action against any employee with respect to either letter.

15. The respondent maintains a list of some two thousand occasional teachers. There are occasional teachers whose names appear on this list who may not be called in to work in a school year. The calling in of a particular occasional teacher is a discretionary matter in terms of the right of the respondent to select such a teacher. In the elementary schools, dispatchers, who are senior secretaries, call in the occasional teachers as required. The dispatchers respond to a call from a principal or vice- principal who may ask for an occasional teacher by name because he or she previously did a good job. However, it may take several telephone calls by the dispatcher to locate any occasional teacher because some occasional teachers are on the lists of more than one board of education. At the secondary school level the call in of occasional teachers is more complicated because of the subject. Most commonly, the teacher will call the department head at school who will then, in most instances, call persons qualified to teach a particular subject.

16. The complainant informed the Board that an application for certification had been filed in Board File No. 1803-82-R. At the time of the hearing of this complaint, the application for certification had not been heard. The complainant argued that the letter in paragraph four had been posted and was intended to be seen by occasional teachers and that there was a very good chance that employees who may have been exposed to this earlier letter may not have seen the letter in paragraph five. The complainant argued that the letter in paragraph four had informed them that they may not engage in union activity on school premises and spelled out the consequences of such conduct. The complainant stressed the vulnerability of the occasional teacher to the pressures executed in the letter in paragraph four and that the concerns over duties and safety could also have been said in one sentence.

17. It was the position of the complainant that the critical part of this case is the remedy. The complainant sought a declaration that the respondent and Dr. McKeown had committed an unfair labour practice and thereby breached the Act. The complainant asked that such a decision be sent to each of the occasional teachers who are the subject matter of the application for certification and that such a decision be posted at each of the schools within the jurisdiction of the respondent. The complainant also asked that the names and addresses of all occasional teachers that have been, or may be, employed by the respondent during the 1981—82 academic year be provided to the complainant in order that they can advise the individuals of their rights under the Act.

18. The respondent maintained that it was unaware of any unfair labour practice where a violation had been found in the abstract. The respondent emphasized that there was no evidence that any employee had been prompted to refrain from exercising the rights (which no one disputes he or she has) because of the letter set forth in paragraph four. The respondent referred to its excellent record in labour relations and to the fact that it has always encouraged its employees to organize. It was urged that the remarks about solicitation were directed to working hours with no intent to proscribe lawful conduct by the employees. The respondent pointed out that there were various organizations in 1982 which were interested one way or another in the representation of the occasional teachers in whole or in part. The peculiar status of its management in the schools was referred to, in that some of the organizations that represented the regular teachers and principals also sought to represent the occasional teachers.

19. The respondent emphasized that its schools are in no way comparable with typical factories or offices and particularly emphasized that there was no period when it could be said that a school is not in operation during a school day. It was conceded that the letter in paragraph four could have been worded in a better way. However, the respondent drew attention to its inexperience under the Act. The respondent referred to its statutory duties under the Education Act R.S.O. 1980, c.129 and regulations there under in support of the proposition that a teacher's duty goes well beyond the classroom with regard to the supervision of and responsibility for students.

20. The respondent emphasized that the letter in paragraph four was part of a regular communication and had resulted from questions which had been addressed to the area superintendents. The respondent characterized the remedy requested by the complainant as having no connection with the alleged unfair labour practice and as demonstrating an interest in obtaining names and addresses of employees for other purposes.

21. The decisions relied on by the complainant for its entitlement to a list of names and addresses were decided in other jurisdictions and were not persuasive. Such decisions were decided under different factual situations and under different statutory provisions as in, for example, British Columbia. The most striking feature of this complaint is the absence of any evidence regarding evidence of membership and of any of the employees being affected by the first letter. In addition, there is no suggestion that any employees were in fact disciplined by the respondent. There is no evidence before the Board on how many employees of the respondent read the first letter and how such employees interpreted the letter.

22. The respondent reacted to inquiries from its school principals and in expressing its concerns for the supervision, instruction and safety of its students, issued the first letter. It is admitted by the respondent that its first letter could have been worded in a better manner. We accept the position of the respondent that it did not intend to violate any of the provisions of the Act and did not intend to abridge any of the rights of its employees.

23. The nature of the operation of schools and the broad responsibilities of teachers during the school day, the competing organizations and the concern of the school principals led the respondent to act in the manner referred to earlier. The primary purpose of the first letter was to ensure that the orderly operation of the schools would not be interfered with. In Associated Medical Services Incorporated, 64 CLLC ¶16,218, the Board stated at page 980:

Having regard to the provisions of the Act read as a whole, I am of opinion that organization of a trade union and collective bargaining are two of the activities which are contemplated as coming within the scope of section 3 and that freedom to participate in these activities is among the "rights" dealt with by section 50 [now 66] of the Act. The last-mentioned section forbids an employer to "refuse to continue to employ a person ... because the person was or is a member of a trade union or was or is a member of a trade union or was or is exercising any other rights under [the] Act." An employer who discharges a person for infraction of a "plant rule" which forbids an employee to exercise his rights under the Act is therefore acting in violation of section 50 [now 66] of the Act. This conclusion does not mean that an employer has been deprived by the legislation of authority to maintain order on his premises and to ensure that productivity will not suffer. If the primary and bona fide purpose of any rule he establishes with regard to activity on his premises outside of working hours or of a kind not covered by section 53 [now 71] is in furtherance of the objectives just mentioned or like objectives, no exception can be taken to the rule, even though an incidental effect of the rule may be to curtail the opportunity a person in his employ has to exercise his rights under the Act.

24. The respondent attempted to remain neutral with respect to the representation of occasional teachers. Even though an employer is not required to stay neutral in an organizing campaign, see Dylex Limited, [19771 OLRB Rep. June 357, 366—7, in fact the respondent did remain neutral. In asking employees to consider the question of representation, the respondent did not violate any provision of the Act.

25. The words of the Board in Consolidated Fastfrate Limited, [1980] OLRB Rep. April 418, 423, are applicable to the facts of the instant complaint:

Nothing in The Labour Relations Act prevents an employer from introducing rules which promote efficiency, or prevent an undue interruption of the production process, and there is no evidence to suggest that the employer in this case had any other motive. Its rule was rather broadly drafted and, ex facie, could apply to non-working areas; but with this exception, there is nothing in the form of the rule which supports the complainant's position; nor, since the dissident employee group has never sought the company's permission to distribute literature, can it now claim that the company has exercised its authority in an unreasonable or discriminatory fashion.

26. On the basis of the evidence before it, we are satisfied that the respondent has not violated sections 3, 64, 66 and 67 of the Act. This complaint is therefore dismissed.

DECISION OF BOARD MEMBER P. J. O'KEEFFE;

1. The facts are as set out in the majority decision and are not in dispute.

2. Having reviewed all the evidence in this case, and keeping in mind the academic background of Edward N. McKeown, I have no hesitation in finding that his letter of December 15, 1982 to the employees involved in this application was a blatant, though sophisticated attempt to frustrate the organizing effort of the applicant union.

3. The subsequent letter of December 23, 1982 from Mr. McKeown to the same employees supports my conclusion in the above in that it can only be viewed in the context of this case as a half hearted attempt to soften the initial offending letter of December 15, 1982.

4. This case cries out for an immediate non-academic, non-hypothetical response by indicating to Mr. McKeown and like employers who would wish to play "big brother" by inserting themselves into the decision by employees to select the union of their choice that this fundamental right of union selection is the preserve of the individual employee and the organization of his choice. Employer meddling or influence in this civil liberty must not be tolerated in a free and democratic society.

5. The choice of the employer to join the organization of their choice to protect their interest, be it the Ontario School of Trustees Council, Board of Trade, or Chamber of Commerce, is quite obviously the employer's private and "sacred" preserve and decision, and it would be unthinkable by them that their employees would have the right to inject themselves into this right of the employer. It begs the question as to why the employer, as in this case, feels that they have the "master's" right to intervene in the "servant's" legal civil liberty right of joining the union of their choice, when the employer will brook no interference in their like civil liberties.

6. I find that the employer in the instant case committed an unfair labour practice and thereby violated the relevant provisions of the Labour Relations Act. In redress, I would require that the employer post the following letter forthwith to each of the employees subject to this application:

TO: ALL PRINCIPALS, VICE-PRINCIPALS AND OCCASIONAL TEA CHERS

RE - UNION ORGANIZATION

On December 15, 1982, I as Director of Education, wrote a letter to each of the schools wherein I advised the principals about a number of matters that related to the rights of employees concerning the attempt by the Ontario Public Service Employees Union to organize occasional teachers employed by the Board. That letter contained a number of statements which were unlawful, contrary to the Ontario Labour Relations Act and, more particularly, constitute unfair labour practices under that Act. I apologize to any of the occasional teachers who may have either seen the letter or been advised of its contents which were, in fact, unlawful statements.

As you may know, occasional teachers have the right to join a union and participate in its lawful activities. This right is enshrined in the Ontario Labour Relations Act.

In my letter of December 15 I stated that solicitation for or against union memberships should not take place during the school day on school premises. Moreover, I stated that employees engaged in any solicitation of support, either for or against union membership, would be subject to discipline. All of the statements are simply a misstatement of the law and are not true.

Employees, including occasional teachers, do have the right to discuss matters that relate to the union on school premises provided that the discussions do not take place during the time at which a teacher is engaged in work. In other words, discussions about the trade union, including the signing of membership cards can take place on school premises provided it is done before school commences, during breaks or at the end of the school day. Furthermore, employees engaged in solicitation of support for the trade union cannot and will not be subject to any form of discipline.

In my letter of December 15 I also stated that the names and addresses of occasional teachers are not to be given or made available to anyone for any reason other than for the proper operation and management of the school. That statement is also not true. There is nothing improper in providing names and addresses of occasional teachers to those who ask. Furthermore, no one will be disciplined if the names and addresses of occasional teachers are provided to persons who ask for such information.

Furthermore, in my letter of December 15 I advised the principals to provide certain information to occasional teachers who asked questions of them about OPSEU and the organizing campaign. The information which I asked the principals to pass on was designed to dissuade occasional teachers from joining OPSEU and I was wrong to have so advised the principals. I have now, by this letter, instructed principals and vice-principals to remain totally neutral in this organizing campaign and to say nothing one way or the other about the issue of whether or not an occasional teacher should join the union.

Quite simply stated, the Board's position now is that we will not interfere with the organization of the trade union for occasional teachers. I hope that the above clarifies the Board's position and I regret any inconvenience that may have been caused as a result of my earlier letter.