The Ontario Public Service Employees Union v. Fanshawe College of Applied Arts and Technology
[1985] OLRB Rep. May 666
2549-84-U The Ontario Public Service Employees Union, Complainant, v. Fanshawe College of Applied Arts and Technology, Respondent
BEFORE: Paula Knopf, Vice-Chairman and Board Members R. Wilson and W. H. Wightman.
APPEARANCES: Ian Roland and Susan Bazilli for the complainant; Brenda Bowlby, G. Bissett and P. Myers for the respondent.
DECISION OF THE BOARD; May 30, 1985
1This is an application under sections 65 and 75 of the Colleges Collective Bargaining Act. In this case, the complainant is seeking the following relief:
(1) A declaration that the respondent has violated the Colleges Collective Bargaining Act.
(2) A direction that the respondent cease and desist from further violations of the Act.
(3) A direction that the respondent pay to any affected employees all monies, premiums and benefits owing with interest as a result of the respondent's violation of the Act.
(4) Such other relief as may be or become appropriate, fair or equitable.
2The background to this case is that in the fall of 1984, the academic staff of the Ontario Council of Regents for Colleges of Applied Arts and Technology in the province held a 17 day strike. The strike was ended by the enactment of an Act Respecting a Labour Dispute between the Ontario Public Service Employees Union and the Ontario Council of Regents for Colleges of Applied Arts and Technology and Boards of Governors of Colleges of Applied Arts and Technology (hereinafter referred to as Bill 130). Bill 130 legislated the academic staff back to work. The issues that arise in this case stem from the assignment of work to the academic staff at Fanshawe College after they were returned to work.
3At the outset of the hearing, counsel for the respondent asked the Board to exercise its discretion under section 71 of the Rules of Practice and Procedure to dismiss the complainant's case on the basis that it did not disclose a prima facie case. Further, it was submitted that the issue before this Board is res judicata in that it was dealt with earlier by the High Court of Ontario on February 22, 1985 by Mr. Justice Maloney. After hearing argument from both parties regarding the preliminary objection, the Board issued an oral ruling to the parties with the following reasons.
4The basis of the union's case is set out in its complaint and by way of a letter outlining the particulars:
- The Complainant and grievors were dealt with contrary to Sections 65 and 75 of the College Collective Bargaining Act (CCBA) when:
a. On November 12, 1984 the college imposed a penalty on employees for exercising their right to strike by assigning catch-up work without mutual consent and/or remuneration, thereby changing their working conditions which change came about entirely as a result of the strike.
b. The Respondent failed to recognize and refused to treat these employees in accordance with Sections 65 and 75 of the College Collective Bargaining Act.
c. The Complainant states that the fact is that the Respondent's actions are designed to or have the result of impeding and frustrating the Applicant bargaining rights and working conditions of the bargaining unit employees of Fanshawe College as represented by Local 110 of the Ontario Public Service Employees Union.
Ms. Brenda S. Bowlby,
Hicks, Morley, Hamilton, Stewart, Stone
Bannisters & Solicitors,
Suite 1201, Box 371
Toronto-Dominion Centre,
TORONTO, Ontario.
M5K iK8
Dear Ms. Bowlby:
RE: Ontario Public Service Employees Union and Fanshawe College —Unfair Labour Act Charges
This letter is to confirm the information I have provided to you in our telephone conversation of January 30, 1985. In addition to the facts set out in the complaint filed with the Ontario Labour Relations Board, the applicant intends to rely upon the following additional facts:
The Ministry of Colleges and Universities convened a meeting of the Presidents of the Community Colleges in Ontario (including Fanshawe College) on or about November 15, 1984, and it was agreed to deal with challenges based upon the 'mutual consent' portions of clause 2(l)(b) of Bill i30 in a common way.
Subsequently by memorandum dated December 12, 1984 (a copy of which is enclosed) to the Presidents and Directors of Personnel of the Colleges, the Ministry instructed the Colleges how to respond to grievances involving the mutual consent provision of Bill i30.
By joint statement of the Ministry of Colleges and Universities and the Community Colleges dated November 21, 1984 (a copy of which is enclosed) the Colleges (including Fanshawe College) and the Ministry announced an agreed upon common application of S. 2(l)(b) of the Colleges of Applied Arts and Technology Labour Dispute Settlement Act, 1984, and purported to rationalize this approach by stating it must be recognized that it would be a misappropriation of public funds for a teacher to receive more than one days pay for one days work.
Jacqueline Robarts, President of Niagara College told a College Committee meeting on November 23, 1984 called to discuss the assignment by mutual consent of makeup work that she was awaiting instructions from the Ministry and that her hands were tied. When it was suggested that there be additional pay or time-off for performing make-up work, Ms. Robarts replied You've had your strike.
Jacqueline Robarts, President of Niagara College, stated, as reported in The St. Catharines Standard on November 28, 1984, that she realized that teachers will have to work harder to make up the lost time, but that's one of the penalties you pay for having a strike. In addition, she said that its [sic] true (the teachers' free) time is being infringed upon but that's one of the penalties you pay for having a strike. The bottom line is that they're trying to make up for the money they lost during the strike. Show me any company or business where people make up for the money they lost during a strike.
5On or about November 14, 1984, Mr. Harley E. Smith, Benefit Policy Officer, Staff Relations—Benefit Section, Ministry of Colleges and Universities discussed a proposal made on behalf of the members of the academic bargaining unit whereby the current pension plan be amended to permit the members to pay contributions into the plan, so that members not lose future benefits as a result of the strike period in which no contributions were made. In response to this request, Mr. Smith expressed his opinion and that of the Council of Regents to OPSEU representatives including Georgina Hancock, that because the academic bargaining unit members had gone on strike, they should pay a price by way of loss of pension benefits in the future. Mr. Smith said When people go on strike they have to suffer or words to that effect. When asked if the Council intended to penalize those members who will retire in the next five years because they've been on strike, he replied If that is the effect of rejecting the amendment (to the pension) then that is OK, or words to that effect.
Yours very truly,
GOWLING & HENDERSON
Ian J. Roland.
- The union's case alleges that the assignment of work to the academic staff after the strike amounts to violations of section 65 and 75 of the Act. It is alleged in particular that section 75(1) was breached when the college failed to involve the union in assigning the work. Thus it is said that the union's representational rights were violated because there was no consultation with the union. To support this proposition, the union relies on the obiter dicta found in the decision of Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sep. 1411 at 1434. While the union acknowledges that its members could not decline to do the assigned work regardless of the lack of consultation, it is submitted that the denial of the right to consult amounts to a breach of section 75(1) of the Act.
6Secondly, the union submits that section 75(2)(a) has been violated because the teachers have been discriminated against for exercising their right to strike. It was argued that the work that was assigned to the teachers after the strike amounts to them having to work the equivalent of seventeen more teaching days without remuneration and this amounts to discriminatory conduct towards them as a result of their participation in the strike. Finally, it is argued that section 75(2)(c) has been violated because Fanshawe College, the Council of Regents of Colleges of Applied Arts and Technology and the Ministry of Education has conspired to compel teachers from refraining from exercising their right to strike under the Act by penalizing them for exercising that right.
7The union advised us that in order to support its claim, it would rely upon the facts set out above as well as a letter of March 22, 1985. This information sets out the facts of the strike, the circumstances of the work assignment after the strike and the union's perception of the Ministry and the Council of Regents of the Colleges of Applied Arts and Technology's position regarding the work assignments after the strike.
8It is clear to the Board that this case raises a matter of serious concern regarding working conditions and representational rights for the union and Fanshawe College. Indeed, it is apparent that the issues raised in this case have a profound importance upon these rights across the province in this sector. Because of this, the Board is exceedingly cautious about dealing with such an issue on a summary basis by way of a preliminary motion to dismiss on the suggestion that there is no prima facie case established by the union. Thus, in assessing this issue, we are assuming for the purposes of this motion, that all the facts put to us by the union are true. The test that the Board is applying is found in the often cited decision of Caravelle Foods, [1983] OLRB Rep. June 875 at paragraph 13:
The words prima facie in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
Therefore, in this case, we must determine whether the applicant union's case, at its best, renders reasonable or arguable a conclusion that the Act has been breached by the College.
9To a great extent, this case has been resolved by the decision of the Supreme Court of Ontario alluded to above. Two members of the applicant union on their own behalf and on behalf of the other members of the union brought an application against Fanshawe College under Rule 14.05(3)(d) and (h) of the new Rules of Practice and Procedure seeking, inter alia, the Court's guidance with regards to the interpretation of section 2(l)(b) of Bill 130. In an unreported oral decision issued on February 22, 1985, Mr. Justice Maloney dealt with the interpretation of section 2(l)(b) of Bill 130. Section 2(l)(b) provides:
Upon coming into force of this Act,
(b) every employee shall report for work and shall perform the duties assigned by the employer including duties assigned by mutual consent in order to afford students the opportunity to complete courses of study affected by the strike.
Mr. Justice Maloney decided that, despite the lack of consent that was sought or obtained from the union regarding the work assignment after the strike, the assignment was lawful. He found that neither Bill 130 nor the collective agreement required the teachers' consent to be or obtained to make the work assignments that were placed in effect at Fanshawe College after the strike.
10We agree with the union that the issue before this Board is broader than that which was before the Supreme Court of Ontario. But the resolution of that narrow issue by the Court has an important impact on the union's position before this Board.
11This can be seen when we deal with the union's allegations individually. The union has argued that section 75(1) has been violated in that its representation rights were denied when the union was not consulted. Section 75(1) provides:
No person who is acting on behalf of the Council or an employer shall participate in or interfere with the selection, formation or administration of an employee organization or the representation of employees by such an organization, but nothing in this section shall be deemed to deprive the Council or an employer or any person acting on behalf of the Council or an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
However, Mr. Justice Maloney ruled that there was no requirement to obtain an agreement from the teachers regarding the assignment of work in this college:
The Act, which brought an end to the strike, continues in force the pre-existing collective agreement under which the college clearly has the right to assign duties, subject to the proviso in Article 4 thereof that 'no teacher shall be assigned to teaching hours in excess of the maximum period . . . provided for . . . except by voluntary agreement between the teachers and the college . . .' That maximum has not been exceeded in this case so that the agreement of the teacher (or any of them) is not required in this case. Accordingly, the words 'mutual consent in section 2( l)(b) in no way limits the authority of the college to effect the impugned rearrangement of duties. In any event the word 'including' does not restrict but rather adds to the words preceding it. . . The teachers have not been assigned work on weekends or holidays. In the net result, the rescheduling has not imposed any additional work in days upon the teachers but has given effect to the very purpose of the Act — i.e. to make up to the students the lost teaching time so that they could complete their course of study.
12In order for this Board to find that there is an arguable case and that section 75(1) has been breached, the Board will have to find that a duty to consult with the union under these circumstances exists. However, the Supreme Court has made it clear that the duty to consult only arises where the maximum teaching hours provided for already under the collective agreement are exceeded. However, in the facts of this complaint, there is no suggestion that the maximum number of teaching hours has been exceeded. Further, Bill 130 itself does not set out a duty to consult. Thus, neither the collective agreement nor Bill 130 creates a duty upon the College to consult with the union in these circumstances. The Consolidated Bathurst Packaging Ltd. case, supra, which was relied upon by the union, deals with the duty to consult with the union in very specified circumstances and discusses such duty by obiter dicta. However, the situation which that case discusses is so completely different and without analogy to the situation before this Board that it can have no application in this case. Thus, we cannot conclude that the duty to consult is created in these circumstances as a result of the decision in Consolidated Bathurst Packaging Ltd., supra.
13The College's failure to consult with the Union in this situation after the strike and making such unpopular work assignments may well have been ill advised. Further, it can be seen that failure to consult has been unwise in a labour relations sense. However, on the basis of the facts alleged by the union, and in the face of the Supreme Court's decision, we must conclude that the College's failure to consult with the Union cannot reasonably or arguably be said to have established a breach of the Union's right to represent the employees under section 75(1) of the Act.
14We turn now to the question of whether the College's actions can be said to amount to discriminatory treatment of the teachers as a result of the strike and thus be considered to be a violation of section 75(2)(a) of the Act. Section 75(2)(a) reads as follows:
75.-(2) The Council, an employer or any person acting on behalf of an employer shall not,
(a) refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because the person is exercising any right under this Act or is or is not a member of an employee organization.
Counsel for both parties dwelt on the question of whether intent was required to establish a breach of this section. However, we feel that this interesting issue need not be determined in this case. Instead, what is important is that Bill 130 required that the academic staff return to work. The intent of Bill 130, as stated by Mr. Justice Maloney, was to make up to the students the lost teaching time so that they could complete their course of study. The result of the assignments after the strike was to effect that stated intent of Bill 130. However, one must still ask whether the assignments can amount to discrimination of the teachers. The teachers argue that the rearrangement of their assignments required much more from them. It is clear that the teachers may have had to work a fuller day in the remaining academic year. However, there is no allegation that the teachers will be required to work a longer academic year or any more days as a result of the reassignment. Instead, what happened is that their academic duties were reassigned in certain ways. For example, the days which had been designated as tutorial days or examination days were changed to become classroom instructional days which would obviously require much more preparation time by the teachers. However, there is nothing in the collective agreement or in the relevant legislation that establishes that teachers had the right before the strike to be paid extra if the duties were reassigned during the academic year within the scope of Article 4 of the agreement. The facts that the union is relying upon only show that the work was reassigned during this academic year within the scope of Article 4. Thus, the teachers cannot show that they are not being paid for work which they would have been paid for prior to the strike.
15Finally, the union argues that there has been a violation of section 75(2)(c) of the Act which states as follows:
75.-(2) The Council, an employer or any person acting on behalf of an employer shall not,
(c) seek by intimidation, by threat of dismissal or by any other kind of threat or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee to become or refrain from becoming or to continue or cease to be a member of an employee organization, or to refrain from exercising any other right under this Act.
Basically, the union submits that their members are being penalized to compel them to refrain from exercising their right to strike. The facts that the Union intended to assert to prove this were, as set out above, the statements made by officials in the Ministry and spokespersons from other colleges showing a conspiracy to exact a penalty from the teachers.
16However, assuming the statements were admissible and that all the evidence the union wished to adduce to prove the conspiracy was admissible, we cannot see how a breach of section 75(2)(c) could be established by such evidence. Both counsel acknowledged that intention is a necessary requirement of a violation of section 75(2)(c). But the conduct and the statements that the union relies upon does not reveal anything other than that the College fulfilled its requirements under the statute to make up the lost time to the students. Thus no causal connection is established between any anti-union animus the College may have had and what the College actually did to comply with the statute. The pleadings of the union only reveal that the College did what it was required to do under the statute. While there may have been specific cases where it may be shown that the college may have had an anti-union animus in the way it exercised its discretion with regard to individuals and their personal schedules, that was not alleged or argued in this case. Therefore, on the basis of the pleadings before us, no breach of section 75(2)(c) can be made out.
17It is a matter of regret and concern to this Board that the College did not engage in the consultative process with the union before the reassignment of academic duties was made. Perhaps, had this been done, these lengthy and divisive proceedings could have been avoided. It may well be that the union will want to pursue the matter further by way of asserting individual claims or arbitral rights before an arbitrator. However, even accepting every aspect of the union's case as being true, we are forced to conclude that the union's case cannot establish, on a reasonable or arguable basis, that the Act was breached as alleged. Thus, pursuant to section 71 of the Rules we have decided to dismiss this case without a hearing.
18This decision confirms the reasons given orally to the parties at the hearing.