[1987] OLRB Rep. December 1454

1611-87-FC Ontario Secondary School Teachers' Federation, Applicant v. Alma College, Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. J. Gallivan and R. R. Montague.

APPEARANCES: Maurice Green, Fred Birket, Elizabeth Jackson and Steven Prettie for the appli­cant; D. K. Gray and S. J. Shamie for the respondent.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER R. J. GALLIVAN; December 23, 1987

1. This is an application under section 40a of the Labour Relations Act for a direction that a first contract be settled by arbitration. The applicant contends that by not agreeing to meet more frequently, and by not providing its negotiating team with a proper mandate to negotiate, the respondent failed to make reasonable or expeditious efforts to conclude a collective agreement. The applicant also contends that the respondent has adopted, without reasonable justification, an uncompromising bargaining position in respect of management rights, seniority, layoffs, and related issues.

2. The application was filed with the Board on September 11, 1987, and was initially scheduled to be heard on September 21, 22, 23, and 24. The matter was subsequently scheduled to be heard on September 28 and 30, and October 1 and 2. A further rescheduling to November 12, 13, 16, and 24 occurred after the parties, through their respective counsel, agreed to waive the thirty-day time limit contained in section 40a(2) of the Act.

3. In making the findings of fact contained in this decision, the Board has carefully consid­ered the oral evidence of the three witnesses who testified before us: Fred Birket, Stephen Shamie, and Thomas Stone. We have also considered the fifty exhibits which were entered during the course of these proceedings, and the inferences which may reasonably be drawn from the totality of the evidence.

4. The respondent (also referred to in this decision as the "College") is a private boarding school which has been in operation for over one hundred years in St. Thomas, Ontario. It is directed by a Board of Managers (the "Bd.") composed of unpaid volunteers. The College has been operating with a deficit for the last few years. During the 1986-87 school year, in which the College had an enrolment of 142 students, its accumulated deficit of $206,981 increased by $187,124 to produce an accumulated deficit of $394,105 as of June 30, 1987. The 1986-87 deficit (of $187,124) was the largest which the College has ever experienced. As of the date of this applica­tion, the College was forecasting a deficit of over $450,000 for 1987-88, based upon an enrolment of approximately one hundred students. One of the factors which the College has identified as being a cause of that significant decline in enrolment is parents' concerns about the quality and standard of education at the College.

5. The applicant (also referred to in this decision as the "Federation") organized the respondent's teachers in the fall of 1986. In an unreported decision dated October 31, 1986 (in File No. 1866-86-R), another panel of the Board wrote, in part, as follows:

1. This is an application for certification in which the parties have reached agreement on all mat­ters in dispute between them with the exception of the inclusion of the classification of vice-prin­cipal in the bargaining unit, and have further agreed to waive their right to a formal hearing in the matter.

2. The parties have reached agreement on all aspects of the bargaining unit description with the exception of whether Lara Masur-Leitch, classified as a vice-principal, should be included in the bargaining unit. The respondent contends that she should be excluded on the basis that she exercises managerial functions within the meaning of section 1(3)(b) of the Act. In view of this dispute, a Board Officer is authorized to inquire into and report to the Board with respect to the duties and responsibilities of Lara Masur-Leitch classified as vice-principal.

3. The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the vice-principal. On the basis of all the evidence before it, the Board is satisfied that in either event more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 15, 1986, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Labour Relations Act to be the time for purposes of ascertaining membership under section 7(1) of the said Act.

4. Therefore, pursuant to its discretion under section 6(2) of the Act, and pending the final reso­lution of the composition of the bargaining unit, the Board certifies the applicant as bargaining agent for all teachers employed by the respondent in the City of St. Thomas, save and except Principal, Dean, Assistant Dean, Director of Music, teachers in the Nursery School, persons engaged on a contractual basis to teach music, Administrative staff and persons engaged in cleri­cal and support functions and, pending the final determination of the matter in dispute, exclud­ing as well the vice-principal.

(For ease of exposition, the persons in that bargaining unit are referred to in this decision as the "teachers".) The parties subsequently agreed to adjourn sine die the Board Officer's examination regarding Ms. Masur-Leitch's duties and responsibilities.

6. In November of 1986, Mr. Birket was assigned by the Federation to assist the teachers' bargaining team in negotiations. Mr. Birket, who is currently attached to the Federation's collec­tive bargaining cluster, has been involved in negotiating about fifteen collective agreements in vari­ous capacities, including President of District 14 of the Federation (from 1978 to 1980), District Negotiator (from 1981 to 1983), and Chief Metro Negotiator (from 1983 to 1986). He met with the teachers in late November or early December of 1986 to review with them a model collective agreement which he had drafted for use in negotiations pertaining to private schools. After a num­ber of modifications had been made in response to concerns raised at that meeting, the teachers adopted the revised proposals as their initial bargaining position. Four teachers were selected to serve on the applicant's bargaining committee, along with Mr. Birket, who was to be the appli­cant's chief spokesperson.

7. On or about November 27, 1986, the Federation gave the College notice to bargain, pursuant to section 14 of the Act. The first negotiating meeting took place on December 8,1986. There were five persons present at that meeting on behalf of the College, including Ms. Masur­ Leitch (the aforementioned Vice-Principal of the College) and Marietta Roberts, who initially served as the College's chief spokesperson. Ms. Roberts is a lawyer who serves as the Chairperson of the College's Personnel Committee on a volunteer basis. After discussing and agreeing upon a number of "ground rules" for the negotiations, the applicant's bargaining committee tabled a proposed collective agreement which included an expanded bargaining unit, a mandatory membership clause, a proposal that the President of the Alma Division of District 35 of the Federation be allowed to observe the meetings of the Bd. and that a bargaining unit member selected by the teachers sit as a voting member of the College's Personnel Committee, a salary grid with grid entries which were "85% of the corresponding grid entries in the collective agreement for the school year 1986-87 between District 35, O.S.S.T.F., and the Elgin County Board of Education", substantial improvements in fringe benefits, a "committee on common concerns", twenty days of sick leave credit per year (with accumulation to a maximum of 300 days), a maximum pupil teacher ratio of 9.9:1, and a number of "working rules", including the following:

3.1.0.0.0. TIMETABLES

3.1.1.0.0. A timetable showing all teaching and supervision assignments shall be provided to each employee no later than the beginning of the first teaching day in September.

3.1.2.0.0. A full-time teacher shall be assigned to teach a maximum of five (5) credits per year.

3.1.3.0.0. No employee shall be assigned more than 1050 minutes of teaching per week. This shall be prorated for part-time and overtime employees.

3.1.4.0.0. No employee shall be assigned more than 300 minutes of supervision per week. This shall be prorated for part-time and overtime employees.

3.1.5.0.0. After 140 continuous minutes of teaching, supervision or any combination thereof, an employee shall be allowed at least 35 minutes free from any teaching or supervision assignment.

3.1.6.0.0. Attendance at activities during evenings and on week-ends shall be voluntary.

3.1.7.0.0. The employer shall make every reasonable effort to arrange timetables for part-time teachers that leave either the first or last part of the day free.

8. Mr. Birket went over those proposals at the December 8 negotiating meeting and explained them to the College's bargaining committee. It was then agreed that at the next meeting the parties would concentrate on section 1 of the Federation's proposals, which included such mat­ters as recognition, union membership and check-off, discipline and discharge, existing practices, "no discrimination", grievances, and arbitration. Although the Federation's bargaining committee wanted an earlier meeting, Ms. Roberts was not available until January 22 due to other commit­ments. Accordingly, the parties agreed to meet on January 22 at 7:30 p.m.

9. At the January 22 negotiation session, Ms. Roberts, after making some preliminary comments regarding a number of matters (including the limited funds available to the College and the need for more students and a greater variety of programs), went through the first half of sec­tion 1 of the Federation's proposals in considerable detail. Some of her questions clearly reflected the College's lack of experience regarding collective bargaining. For example, she asked the mean­ing of "without just cause", and also asked if it meant that a person "can go to the courts". Near the end of that two and a half hour meeting, Mr. Birket expressed concern about the slow pace of negotiations and about the College's failure to provide a written counter-proposal at that meeting. The College's representatives then explained the problems which they had encountered, including the absence on vacation of the Chairman of the College's Finance Committee, the eye operation which their accountant had undergone, the fact that they did not yet know their budget position for 1987-88, and the lack of readily available costing. The parties agreed to form a small committee to discuss seniority and salary costing prior to the next negotiating meeting, which was tentatively scheduled for February 10 and 11. However, that small committee never met, and Ms. Roberts subsequently called Mr. Birket to cancel February 10 and 11. Further discussions between Mr. Birket and Ms. Roberts ultimately led to March 18 being set as the date for the parties' third nego­tiation session.

10. As a result of some concern about the College's ability to conduct negotiations with the Federation, E. Sanders, who was at that time the Chairman of the Bd., contacted Mr. Storie, an experienced and very able labour lawyer who had represented the College in respect of the Federa­tion's application for certification. Since the College was desirous of being represented at the bar­gaining table by Mr. Storie's law firm but was experiencing financial difficulties, Mr. Storie arranged for Mr. Shamie, who was then articling with the firm, to become the College's spokesper­son at the bargaining table. Mr. Shamie has an M.B A. in industrial relations from McGill Univer­sity and an LL.B. from Queen's University. While studying for his law degree, he served as a lec­turer in respect of an industrial relations course offered by the Faculty of Commerce, having earlier taught courses in industrial relations in the University of New Brunswick's Faculty of Administration and served as an adjudicator with the New Brunswick Public Sector Labour Rela­tions Board. It was the feeling of Mr. Storie and his partners that, with some supervision of Mr. Shamie by Mr. Stone, the firm could accommodate the College in a professional way but reduce the cost significantly by having Ivir. Shamie serve as the College's new spokesperson at the bargain­ing table.

11. Some of the College's bargaining costs were subsidized by the Conference of Indepen­dent Schools, from February to June of 1987. During that period, Mr. Stone provided the Confer­ence with a general status report from time to time, but took no instructions from the Conference regarding the negotiations.

12. After receiving background information from Mr. Storie about the College, and famil­iarizing himself with the proposals which the Federation had given to the College in December, Mr. Shamie did some research into private school collective agreements. In doing so, he discov­ered that with the exception of some Hebrew schools in the Metropolitan Toronto area, the only private school in the province which was bound by a collective agreement was the Toronto French School, which had entered into a collective agreement (the "T.F.S. Agreement") with Alliance des Enseignants de la Toronto French School, an employees' association that represented the teachers at that school. Mr. Shamie also spoke with Charles Beer, who heads the Conference of Indepen­dent Schools. Through his discussions with Mr. Beer, Mr. Shamie gained further information about private school standards. In summarizing the College's situation in comparison with other private schools, Mr. Shamie testified as follows: "Generally Alma was a bit of the poor sister as compared to the other private schools. Its tuition fees were lower. They also had a fluctuating enrolment from year to year, whereas most of the other private schools had a constant enrolment and always a healthy waiting llst. In terms of the number of courses that teachers are required to teach at Alma, they were well lower than the average at the other private schools. As well the rates of pay for the teachers at Alma were lower than those at other private schools...."

13. To assist the College in formulating a counterproposal to the Federation's initial posi­tion, Mr. Stone drafted a number of administrative provisions and sent them to the College. Sev­eral of those provisions were modelled on provisions contained in the T.F.S. Agreement. On Feb­ruary 24 Mr. Storie attended at the College with Mr. Shamie for the purpose of reviewing those proposals, introducing Mr. Shamie to the Bd., and explaining the collective bargaining process and various provisions of the Act, including sections 40a, 43, and 79. To avoid further delays in bar­gaining, it was agreed that instead of taking instructions from the full Bd., Mr. Storie and Mr. Sha­mie would deal with the Chairperson of the Personnel Committee and forward all drafts to her. At that meeting, the Bd. approved, with a few minor changes of a cosmetic nature, the provisions drafted by Mr. Storie.

14. On February 25, Mr. Shamie telephoned Mr. Birket to introduce himself and to advise Mr. Birket that he would be bargaining on behalf of the College. He also told Mr. Birket that he would be sending him some contract proposals regarding non-monetary items. Those proposals, which Mr. Shamie forwarded to Mr. Birket on February 26, included purpose, recognition, man­agement rights, union security, "no strike, no lockout", relationship, representation, and duration clauses, as well as provisions regarding grievances and arbitration, bulletin boards, maternity leave, a committee on common concerns, new employees, and teaching hours. They also included the following provisions:

ARTICLE 3- MANAGEMENT RIGHTS

3.01 The Union recognizes and acknowledges that the right to manage and conduct the business and affairs of the College is fixed exclusively in the College and without limiting the generality of the foregoing the Union acknowledges that it is the exclusive function of the College to:

(a) select, hire, transfer, promote, demote, layoff, recall employees covered by this Agreement and select employees for positions excluded from the bar­gaining unit;

(b) maintain order, discipline and efficiency and in connection therewith to make, alter, publish and enforce reasonable rules and regulations, policies and practices to be observed by employees covered by this Collective Agreement, discipline or discharge employees for just cause, provided that a claim for unjust discipline or discharge of an employee who has com­pleted his probationary period may be the subject matter of a grievance and dealt with as hereinafter provided;

(c) determine programs and activities of the College, the number of employees to be employed, teaching and other duties and responsibilities of employ­ees; the number of students to be allocated to a program, class size, the assessment of staff, the designation of positions of responsibility and the selection of individuals to positions of responsibility, working hours, the school year and the holidays to be observed, and such other aspects of the College's jurisdiction as are in compliance with the prevailing statutes and regulations pertaining to education in the Province of Ontario;

(d) have the sole and exclusive jurisdiction over all operations, buildings, facili­ties and equipment.

ARTICLE 13- TEACHING HOURS

13.01 It is acknowledged that notwithstanding other provisions in this Agreement, employees are required to perform additional duties and accept additional responsibilities outside of nor­mal classroom hours including but not limited to the provision of special help to students, standby or supplementary periods, staff meetings, supervision of lunchroom and recess periods, supervision of sports and other school activities and preparation for and the making of work for classroom and other duties in accordance with the College's usual practices. Employees not required to teach the maximum periods normally allocated to full time employees may be assigned specific administrative and supervisory duties in the periods not worked.

15. In describing his reaction to those proposals, Mr. Birket told the Board, "I blew steam at [Articles 3 and 13]. There was a lot I didn't like, but I thought those two were outrageous. Under Article 13, a teacher would be on duty seven days a week, 365 days a year. It gives the Col­lege one hundred per cent of the teachers' time and sets no limits on working hours. It comes out of another collective agreement but it's a day school with no boarding component. In that context it takes on a different meaning."

16. In explaining the College's rationale for the management rights clause which it proposed (on the advice of counsel), Mr. Shamie told the Board: "It's virtually a carbon copy of the management rights clause in the Toronto French School collective agreement. The rationale of the College on this clause is that it is important in this day and age to have all of the rights of manage­ment set out in a particular article so that there can be no confusion or problems with any of the issues, in terms of the arbitral case law, as well as the specific functions inherent in a private school." That evidence was confirmed by Mr. Stone, who also told the Board, "This management rights clause is as normal as apple pie."

17. Mr. Shamie's explanation of the College's rationale regarding Article 13 was: "This is another article directly out of the Toronto French School collective agreement. The rationale for this article is that Alma is not only a private school but a boarding school, so that students live on the premises twenty-four hours per day. This in some circumstances may necessitate the involve­ment of teachers in activities outside of teaching hours, and all the responsibilities set out in the article relate to those additional duties."

18. Messrs. Shamie and Birket subsequently agreed to March 18 as the date for the parties' next negotiation session. To further prepare for that session, Mr. Shamie attended at the College on March 10 and met with the Vice-Principal and the Bursar to discuss a number of matters, including existing workload, fringe benefits, evaluation procedures, and the College's financial state. Through those discussions and his earlier meeting with the Bd., Mr. Shamie gained the fol­lowing information. The College had seven part-time and nine full-time teachers at that time. Most of the full-time teachers at the College were teaching five courses, each of which involved six thirty-two minute periods per week (for a total of 960 minutes per week). Two full-time teachers had agreed to teach an extra course; thus, they were each teaching six courses. In addition to their teaching responsibilities, each full-time teacher was required to perform some additional duties, including one hour of lunch break supervision per week, one hour (3:45 to 4:45 p.m.) of "club time" per week, fifteen minutes of "morning chapel" per day, four hours of "detention duty" per year, and two or three other supervision duties (such as supervising dances) over the course of the year. Six "house mothers" were responsible for the students during the evenings and at all other times when teachers were not present at the school. The College was concerned about what it per­ceived to be a lack of commitment to the school by some part-time teachers who were teaching courses only in the morning or the afternoon as a result of "individual deals" which they had made with the former principal of the College. The College is financed primarily by students' tuition and board payments. It receives no government funding. In order to attract students, it must compete with other private schools on the basis of quality of education and extra-curricular activities. As of March 10, it was already running a deficit of $140,000 for the 1986-87 school year, with an expecta­tion that the total deficit for that school year would likely be somewhere between $160,000 and $200,000. Through his discussions with representatives of the College, Mr. Shamie also became aware that the College wished to move to a standard full-time teaching load of six courses per full-time teacher, in order to bring itself into line with the private school norm and to have greater flexibility regarding the courses which could be offered.

19. At the March 18 negotiation session, the College was represented by Mr. Shamie and Ms. Masur-Leitch. The possibility of some members of the Bd. being on the College's bargaining committee had been discussed when Messrs. Stone and Shamie met with the Bd. on February 24, but the idea was rejected as it was not possible for any members of the Bd. to be present at all of the bargaining sessions, which it was anticipated would take place at "odd hours" and on week­ends. However, it was left open that Ms. Roberts, who was to be a resource person for Mr. Sha­mie, would attend if her schedule permitted her to do so. At the commencement of the March 18 negotiation session, Mr. Shamie noted that the College differed from public schools in that it was funded primarily by tuition fees and did not receive, and would not accept, any government funding. He also indicated that he had not yet received any directives from the Bd. concerning curricu­lum, staffing requirements, or teaching load, but that those directives would be formulated at a future Bd. meeting. Mr. Shamie then went through all of the College's proposals (which he had mailed to Mr. Birket), and explained the College's position. In respect of the management rights clause, Mr. Shamie indicated that it was of prime importance to the College to have a management rights clause in the contract in order to be in a position to run the school. He also indicated that the tact that the Federation did not like the clause was not sufficient to justify its removal. He further stated that the College would appreciate having a response from the Federation with respect to each section in the management rights clause proposed by the College, and expressed a willingness to negotiate about any aspects which were of concern to the Federation.

20. In commenting on Article 13 at the March 18 negotiation session, Mr. Shamie noted that it was taken from the T.F.S. Agreement, and stated that the Bd. was eager to spell out the unique responsibilities of a teacher at Alma College. In this regard, he expressed management's view that they needed the flexibility to ask teachers to perform those duties because the College was a boarding school, at which the additional duties and responsibilities covered by that provision took on a greater importance than they would have in the context of a school where the students were free to go home at the end of the day. In response to Mr. Birket's assertion that the profes­sionalism of the College's staff made such a provision unnecessary, Mr. Shamie stated that the Bd. wanted to ensure that the staff would fulfil those important duties and responsibilities, in keeping with the College's aims and objectives of providing a higher level of education.

21. There was also considerable discussion at that meeting in relation to the "committee on common concerns" proposed by the Federation. Mr. Shamie stated that the Bd. thought it was a good idea, and indicated that the Principal and Vice-Principal would be the College's representa­tives on the committee. Mr. Birket's response was that the teachers were concerned about the Principal and Vice-Principal being the College's only representatives on the committee. He sug­gested that the committee should include some members of the Bd. When Mr. Shamie noted that both the Principal and the Vice-Principal were members of the Personnel Committee which repre­sented and reported to the Bd., Mr. Birket asserted that the Federation was looking for some "out of school input" and "someone other than paid administration

22. At the March 18 negotiation session, the parties reached agreement on several clauses, including provisions regarding relationship, representation, and new employees, as well as three clauses pertaining to union security. It was also agreed that the next bargaining session would take place on April 3 and 4.

23. On April 3 Mr. Shamie tabled on behalf of the College contract proposals regarding lay-off and recall, evaluation, and employee personnel files. Those proposals were initially drafted by Mr. Shamie and then revised by Mr. Stone. The proposed lay-off and recall provision read as follows:

Article 16 - Lay-off and Recall

16.01 In cases of lay-off and recall the following factors shall be considered:

(a) academic and professional qualifications; teaching proficiency; ability and effec­tiveness of the teacher; experience and ability to teach the required subject materials and the requirements of the College's programmes, including the duties set out in Article 13.

(b) seniority with the employer.

When the matters in factor (a) are relatively equal in the opinion of the College, then factor (b) shall govern.

16.02 Employees declared surplus shall be placed on a mailing list and for a period of two years after termination shall be given first consideration for vacant positions in accor­dance with the principles contained in Article 16.01.

24. Mr. Shamie's testimony regarding the College's rationale for Article 16 was: "Article 16 is also taken out of the Toronto French School collective agreement. The rationale for the article is that it is a competition type clause. As a private school we are in a heavily competitive market. As such we want to ensure that we have the highest quality in our academic staff because, at the end of the day, it's the quality of the academic staff that will attract students. The more students we have, the more viable the institution will be." Mr. Shamie also noted that the current collective agreement (for academic employees) between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union (the "Community Colleges Agreement") contains a "competition clause" which provides, in part, as follows:

8.05 When the College decides to lay off or to reduce the number of full-time employees who have completed the probationary period or transfer involuntarily full-time employees who have completed the probationary period to another position from that previously held as a result of such lay-off or reduction of employees, the following placement and displacement provisions shall apply to full-time employees so affected. Where the competence, skill, and experience of employees to fulfil the requirements of the full-time position concerned are relatively equal, seniority shall apply....

25. At the April 3 negotiating meeting, Mr. Birket stated that the Federation wanted to have a full contract proposal from the College, including monetary proposals and provisions con­cerning staffing. Mr. Shamie indicated that he was in a position to discuss principles but not specific contract language, as no firm positions concerning those matters had yet been decided upon. He also stated that there was soon going to be a meeting of the Personnel Committee to formulate positions on those matters. The parties then proceeded to discuss recognition, management rights, union security, "no strike, no lockout", relationship, representation, bulletin boards, grievance procedure, the committee on common concerns, and duties and responsibilities. Mr. Shamie noted that the Federation's proposals did not contain a layoff and recall provision, and asked Mr. Birket to table a proposal on those matters.

26. Negotiations continued on the following morning. During that session, Mr. Birket tabled the following proposal:

ARTICLE XX LAYOFF AND RECALL

XX.01 Before April 25 of each year, the college, in consultation with the union executive, shall make a determination of the projected number of students for the September following.

XX.02 The number of teachers to be employed for the school year commencing in Septem­ber shall be not less than the number calculated by applying the PTR in 5.1.1.0.0. to the projected number of students above.

XX.03 In the event that there are more teachers on staff than are needed for the next school year after taking attrition into account, layoffs may be done but in order of seniority, least senior first.

XX.04 If the application of seniority in XX.03 causes the layoff of a teacher who is the only qualified teacher for courses planned for the following year, then that teacher may be retained and the next teacher in seniority order may be laid off.

XX.05 Employees laid off shall be placed on a mailing list and for a period of two years after layoff shall be recalled in order of seniority for positions for which they are qualified.

At that meeting, the College's bargaining committee asserted that seniority is less important than qualifications and that enrolment depends to a large extent upon having good teachers. They also took the position that employee dedication is important and that it is essential that the College have the right to make decisions on that basis. They also noted that their layoff and recall provision had been taken directly from the T.F.S. Agreement. The Federation's bargaining committee, on the other hand, stated that job security is the essence of unionism and is of the utmost importance to the teachers. They expressed the view that the probationary period and the "qualifications" lim­itation on seniority rights in the context of layoffs provided sufficient protection for the College. Following that rather heated discussion, each of the parties attempted to foster some progress by making some package offers. Although none of the packages was accepted, the parties succeeded in narrowing their differences on a number of issues. April 24 and 25 were agreed upon as the dates on which negotiations would continue.

27. On April 15 Mr. Shamie met with Ms. Roberts, Ms. Masur-Leitch, and some other members of the Personnel Committee for about two and a half hours to review some additional proposals which he had drafted (with the assistance of Mr. Stone). At that meeting, Mr. Shamie received instructions about how much flexibility the College had on various aspects of those pro­posals. (For example, the College's opening position on sick leave accumulation was to be that a maximum of fifteen days could be accumulated by each teacher; at that meeting, Mr. Shamie was given authorization to increase that to twenty days during the course of bargaining.)

28. On April 20, Mr. Shamie caused an updated copy of the College's proposals to be deliv­ered to Mr. Birket. They included provisions regarding probationary period, sick leave, leave of absence without pay, professional development, and fringe benefits, as well as the following pro­posals which Mr. Shamie drafted, with input from Mr. Storie:

Article 19- Teaching Hours

19.01 Full-time teacher - maximum of six credits per year.

19.02 Maximum of 40 teaching periods per week.

19.03 One teaching period equals 32 minutes.

19.04 Maximum of 1280 minutes of teaching per week.

NOTE: CONTRACI7 LANGUAGE TO BE DEVELOPED

Article 20- Part-Time Teachers

20.01 The College has the sole discretion to determine if and how many part-time teachers are required by the College for each academic year.

20.02 Seniority and years of teaching experience in respect of any part-time teacher shall be determined on the basis of the following accumulation of seniority:

26 periods or more a week - one year of seniority for each year worked

15-25 periods a week - one half year of seniority for each year worked less than 15 periods a week - no seniority

20.03 Actual remuneration for part-time teachers shall be on a pro-rata basis as set out in the salary grid.

20.04 It is recognized that the number of teaching periods assigned to part-time teachers may vary from time to time with the requirements of the College.

20.05 Part-time teachers shall be resonsible [sic] for the performance of additional duties and responsibilities as set out in Article 13 of this collective agreement. Part-time teachers shall attend all staff meetings.

29. During the course of bargaining and during his testimony before the Board, Mr. Shamie expressed the view that the seniority accumulation provision proposed by the College was an equi­table system which would serve the interests of full time teachers and part-time teachers. Mr. Sto­ne expressed a similar view. His evidence in chief concerning that proposal was that there is "abso­lutely nothing unusual" about pro-rating seniority for part-time employees. He also testified: "The form here is in block times. I'm more accustomed to pro ration based on actual hours worked. That's the norm in the hospital industry. I don't believe I have ever negotiated a collective agree­ment where the accumulation of service for part-time employees is the same as that for full-time employees...." During his cross-examination, he added that both he and the Bd. felt that the Fed­eration's principle of equal seniority accumulation by full-time and part-time teachers was unfair.

30. The April 24 bargaining session was scheduled to begin at 4:00 p.m. Mr. Shamie went to the College earlier that day with a view to obtaining a monetary proposal from Ms. Roberts. However, he did not have that proposal at the commencement of the meeting, because Ms. Rob­erts was late in arriving that afternoon. Messrs. Shamie and Birket, who had developed a good professional relationship, met privately in the hall prior to that meeting. After Mr. Shamie explained the situation, Mr. Birket stated that he would caucus with his committee and provide a response. At the commencement of the negotiation session, Mr. Birket noted that at the previous meeting he had made a strong request for a complete set of proposals, including the College's monetary proposals. He stated that his committee intended to treat seriously the College's failure to comply with that request, and indicated that the Federation would be applying for conciliation on the following Monday. He also told the College's representatives that his committee was not willing to continue negotiations until either a conciliation officer was appointed or they were pro­vided with a complete proposal by the College. In response, Mr. Shamie stated that the College was considering a wage proposal and that he hoped to be in a position to table it later that day. He also advised them that the College's projected enrolment for the 1987-88 school year was very low and that this projection was causing the Bd. serious concern about the viability of staying open. He added that although no decision had yet been made about that matter, he had a duty to disclose that possibility. The College then requested time to caucus, and asked the Federation's bargaining committee not to leave.

31. By the time the parties reconvened twenty minutes later, Ms. Roberts had arrived. As a preface to the College's monetary proposal, Mr. Shamie noted that the additional funds needed to cover a salary increase for the next school year would have to be generated either by an increase in tuition fees or a layoff. He also stated that the College's deficit for the current school year was already $160,000, and was projected to rise as high as $200,000 by the end of that school year. He added that the bank could call the College's loan at any time.

32. The College's initial monetary proposal was that the status quo be maintained for the balance of the 1986-87 school year and that for the 1987-88 school year, the teachers be put on the Elgin County Board of Education's grid, as proposed by the Federation, but that their salaries for the 1987-88 school year be 65% of the salaries on that grid. Any teacher whose existing salary was higher than that would be "red circled". If the College employed any part-time teachers their salaries would be pro-rated. The offer was expressly indicated to be dependent upon enrolment, reor­ganization of teaching staff in terms of duties and number of hours, and possible layoffs. In com­menting on the absence of any further salary increase for the 1986-87 school year, Mr. Shamie noted that the teachers had already received a 5% increase for that year, and noted that it was impossible for the College to retroactively raise tuition fees. In the ensuing discussion, Mr. Birket indicated that 65% was not acceptable to the Federation, but added that he recognized it to be merely the College's first offer. In this regard, he noted that the offer would result in fourteen teachers being red circled, with only two teachers receiving a raise. Nevertheless, he recognized the College's willingness to accept the Elgin County grid as an important first step towards elimi­nating the salary inequities which had developed at the College. When Mr. Birket asked how important the Elgin County Board of Education grid was to the College, Mr. Shamie replied that it was seen to be a useful comparison because of its objectivity and its application to teachers work­ing in the same area, but added that the College would be quite amenable to structuring an "Alma College grid".

33. At that meeting, Mr. Birket stated that there were two major issues from the teachers' perspective: seniority and a means of effective communication with the Bd. concerning the future direction of the College. He told the College's bargaining committee that their layoff proposal was unacceptable to the Federation, and also expressed serious concern about the Bd.'s desire to increase the full-time workload from five to six courses, and to reduce its reliance on part-time teachers. In support of the College's desire to "move to full-time and then hire part-time if required", Mr. Shamie noted that the effective cost of fringe benefit coverage was less for full-time teachers than for part-time teachers (because the College paid the same fringe benefits for part-timers as it did for full-timers). He also noted that a number of the College's part-time teachers worked only mornings or afternoons, and suggested that the College could no longer work under that system as the College needed greater flexibility if it was to remain in operation. He further noted that the College's justification for its workload proposal was that the teacher's existing work­load was below the norm for private schools. Both parties agreed to apply for conciliation (on the following Monday), and to continue to negotiate in the interim.

34. Bargaining continued until 8:55 p.m. on April 24 and resumed at 10:00 o'clock the fol­lowing morning. In order to meet one of the teachers' major concerns, the respondent agreed that, in addition to the Principal and the Vice-Principal, the College would be represented on the com­mittee on common concerns by a member of the Bd.'s Personnel Committee. (The teachers' repre­sentatives on the Committee were to be three teachers selected or appointed by the Federation.) The discussions were quite fruitful and, as a result of compromises by both parties, resulted in agreement on the following provisions:

Article 1 - Purpose 1.01 Article 2 - Recognition 2.02 Article 4 - Union Security 4.04 Article 5 - No Strike, No Lock-out 5.01 5.02 Article 7 - Representation 7.01 7.03 Article 8 - Grievance Procedure 8.01 - 8.17 Article 9 - Bulletin Boards 9.01 Article 11 - Committee on Common Concerns 11.01 Appendix "A" - Single Arbitration Procedure Article 17 - Evaluation 17.01 - 17.07 Article 18 - Probationary Period 18.01 18.02 18.03 18.05 Article 24 - Professional Development 24.01

24.02

24.03

The parties also agreed to meet on May 11 for further negotiations.

35. Discussions with other Federation officials led Mr. Birket to conclude that it would be inadvisable to apply for conciliation at that time, as Federation officials were concerned about "un­freezing" the teachers' terms and conditions of employment (which, by virtue of section 79(1) of the Act, could not be altered by the College without the consent of the Federation). On May 6, Mr. Birket telephoned Mr. Shamie and told him that he had decided not to apply for conciliation at that time.

36. The parties met on May 11 from 4:00 to 7:00 p.m. and continued to package proposals by (in the words of Mr. Birket) "putting together noncontentious and medium contentious items". Although no agreement was reached on any of the packages, some individual items were resolved. The meeting ended early because Ms. Masur-Leitch had to leave in order to attend the funeral of a family member. After that meeting, Mr. Shamie had dinner with the Federation's bargaining com­mittee. It was decided during the dinner that Mr. Shamie would apply for conciliation. Mr. Shamie made that application on the following day. As a result of that application, Conciliation Officer Bernard Abes was appointed to confer with the parties and endeavour to effect a collective agree­ment.

37. The parties' next negotiation meeting took place on May 19. Seniority was the major topic of discussion. In explaining the College's rationale for the proposed differentiation between part-time and full-time employees for purposes of seniority accrual, Mr. Shamie expressed the view that the College's proposal (Article 20.02 as quoted above) was the easiest way to administer the seniority list and also the fairest. Mr. Birket disagreed with that position, and stated that the Federation did not want a seniority system which penalized part-time teachers. In testifying about the applicant's concerns about the respondent's seniority proposal, Mr. Birket told the Board: "One of the hangups is that wherever I've negotiated I've always thought of seniority as determin­ing layoff, while teaching experience determines the grid position and pay.... They proposed a scheme that would have different seniority credit for full-time than for part-time. The effect would be that after some years as a part-time teacher you'd eventually be at the junior end of the senior­ity list. It represents a severe disadvantage for being part-time. It's been the Federation's observa­tion that the people that take advantage of part-time are more often women. We view that approach to part-time seniority as anti-female." In support of the College's desire to reduce or eliminate the use of part-time teachers, Mr. Shamie stated that the College wanted to remain com­petitive with other private schools. In that regard he noted that the College's heavy reliance on part-time teachers was out of step with the other private schools. He also asserted that full-time teachers are more involved, and take a more active role in their students' lives and extra-curricular activities. The parties tentatively agreed at that meeting to meet again on May 27. However, that meeting was subsequently cancelled because the Conciliation Officer was unavailable on that date due to a prior commitment.

38. The cancellation of the May 27 meeting was agreed to by Messrs. Birket and Shamie in a telephone conversation on May 25. During the course of that conversation, Mr. Birket asked Mr. Shamie how he would feel about putting the matter before the Board on the basis of first agree­ment arbitration. When Mr. Shamie replied that he had not given the idea any thought, Mr. Birket stated that he would probably make such an application if the parties came to an impasse in June. Mr. Birket also expressed the view that this would be an "easy way out", and that it would take them both "off the hook".

39. The Conciliation Officer convened a meeting of the parties on June 3. In addition to Mr. Shamie and Ms. Masur-Leitch, Don Harris, who had become the Chairman of the Bd. on March 26, was in attendance at that meeting on behalf of the respondent. Mr. Shamie told the Fed­eration (and the Conciliation Officer) that the College had a crisis in enrolment, with only seventy students having actually enrolled and an estimated additional enrolment of only twenty students, for a total of ninety students in 1987-88, compared with 142 students in 1986-87. Mr. Shamie gave the Federation's bargaining committee lists which confirmed that information. Mr. Shamie also indicated that a Bd. meeting was soon to be held to decide whether the school would remain in operation or be closed. During the course of discussions which occurred between the parties in the presence of the Conciliation Officer, Mr. Birket asserted that job security was the major issue, with the Federation's proposals concerning pupil-teacher ratio, numbers of teachers, and part-time teachers being an attempt to preserve the status quo by means of language in broad use in the pub­lic education sector. Mr. Shamie, on the other hand, asserted that the College's proposals coin­cided with what other private schools were doing, and with the language of the T.F.S. Agreement. Mr. Shamie also asserted that the respondent was merely seeking to maintain the right to manage the College, a right which the respondent felt to be essential for future operations. No progress in resolving the outstanding issues was made that day. Near the end of that three-hour meeting, the Conciliation Officer told the parties that they would both have to go back and rethink their posi­tions. He added that if they maintained their positions, they would be "just flogging a dead horse

40. At the conclusion of the conciliation meeting, Mr. Birket advised Mr. Shamie that he was not going to "file for a 'no board' report". Mr. Shamie then told Mr. Birket that he would be seeking instructions before making a decision about that matter. After conferring with Mr. Storie, Mr. Shamie recommended to the College that they take that step in order to move negotiations along to a conclusion, and to place the College in a position to alter terms and conditions of employment for the 1987-88 school year. The College agreed. A "no board" report was subse­quently requested and granted (on June 16).

41. Mr. Stone was kept abreast of the negotiations by Mr. Shamie, with whom he reviewed the situation before and after each negotiation session. By the beginning of June, Mr. Stone became concerned that some issues which he thought should have been settled by that point in time remained in dispute. Accordingly, in mid June he (and Mr. Shamie) met with Mr. Harris and other members of the Bd. to review the issues and give the negotiations a sense of direction. At that meeting, Mr. Stone recommended that the College abandon its plan to reduce its reliance on part-time teachers in 1987-88 by agreeing to maintain the status quo, with a view to resolving what had become a major issue at the bargaining table. His evidence concerning that recommendation was: "I said to the Bd. that one of the difficulties with bargaining a first collective agreement is you find out what the rest of the world's doing. It's true regarding part-time/full-time complement that the Conference schools are essentially full-time, but the College has employed part-time for many years. You can't simply unwind in one agreement what has existed for a long time." Mr. Stone's recommendation was accepted by the Bd.

42. Following that meeting, Mr. Stone called Mr. Birket and requested that a further nego­tiation session be held. Mr. Birket agreed. When the parties met on June 24, Mr. Shamie (who was accompanied by Ms. Masur-Leitch and Mr. Harris) gave the Federation's bargaining committee the following information. Enrolment was then at 83 students, with 100 students being a realistic estimate, and 140 students being an optimistic possibility. The College's figures indicated that with 100 students, there would be a $400,000 deficit. Nevertheless, the Bd. had decided to further explore the possibility of keeping the school open, although certain variables, such as the possibil­ity of the bank calling its loan, were beyond their control. The Bd. was of the view that it was criti­cal that the Bd. and the Federation work together and put their differences behind them. There were a number of "generalities" which the Bd. wanted the Federation's bargaining committee to think about. The College would not sign a collective agreement without a management's rights clause and a "competition" format layoff provision. However, the Bd. recognized that pan-time teachers had played a valuable role at the College, and was prepared to permit those who wished to continue to teach part-time to do so. In time-tabling, the College would attempt to accommo­date the needs of part-time teachers, but needed discretion and could not be constrained to sched­ule individual part-time teachers only in the morning or the afternoon. The College wished to move to six courses as the normal full-time teaching load, and was prepared to compensate by means of a lump sum payment teachers who moved from five courses to six courses. The change in course load would not generate any layoffs as the College planned to offer some new courses. However, some teachers might have more lesson preparations as a result of the change. Part-time teachers would be guaranteed the same number of courses as they had previously taught, but they would not necessarily teach the same courses. The salaries of teachers who were unable to go to six courses would be frozen at the five course level for the next school year. If the College had 140 stu­dents in 1987-88, there would be no layoffs. If enrolment was lower, the College was looking at a layoff possibility, but was of the view that it could accommodate both the Federation's concerns about seniority and the College's concerns about qualifications, by laying off the most junior teacher. The College's new position was not reduced to writing, but rather was presented orally by Mr. Shamie in an effort to avoid getting "bogged down" on contract language. It was Mr. Shamie's intention to reduce it to writing in the event that the parties reached agreement in principle.

43. In responding to the College's overtures, the Federation's bargaining committee expressly recognized that the College had made a move on the "part-time issue". They were pre­pared to drop their vacation pay proposal and reduce their fringe benefit demands, but wanted five courses to constitute a full-time course load, with six courses to be taught only on mutual agree­ment and with 20% extra pay. They tabled a new grid, but continued to insist upon their own lan­guage regarding layoff and recall, as well as sick leave and leaves of absence. They reiterated the view that a management rights clause was unnecessary, but offered the following wording:

The Union recognizes the right of the College to manage and conduct the business of the Col­lege except insofar as it is constrained by the terms of this agreement, and the statutes and regu­lations of laws of Ontario.

44. In the ensuing discussions, the College's bargaining committee advised Mr. Birket and his committee that their proposals regarding managements rights, and layoff and recall, were unac­ceptable. They told the Federation's bargaining committee that they wanted those provisions to be in the format proposed by the College, but offered at that time, and at a number of other times during negotiations, to go through them phrase by phrase and consider what the Federation dis­liked about them. However, Mr. Birket declined to do so, and merely assented that the College's language was "repugnant". The College's bargaining committee also indicated that the lump sum payment which they were offering to teachers who moved from five to six courses would be $500 in September and a further $500 in January. When Mr. Birket characterised that offer as being "in­sulting", Mr. Shamie asked him what he expected in the context of an expected deficit of $400,000. 1-le also noted that the new grid which the Federation had tabled represented a $100,000 increase, and said that it was "ridiculous". Mr. Binket then expressed a similar view concerning the College's offer. After caucusing with the applicant's bargaining committee to further consider the respon­dent's new position, as amplified by the hours of discussion which had taken place that day, Mr. ~irket met privately with Mr. Shamie and told him that the College's position was unacceptable. He also told Mn. Shamie that the Federation would in all likelihood be making a section 40a appli­nation during the first week of August.

45. Mr. Shamie was away on vacation from late June to July 24. (He and Mr. Binket had agreed that there would be no bargaining meetings during July.) After Mn. Shamie returned, he rind Mr. Storie met with Mr. Harris. Following that meeting, Mn. Stone contacted the applicant's eounsel, Maurice Green, and arranged to meet with him and Mr. Birket on August 4. Mr. Shamie was also present at that meeting which lasted approximately three hours. It was agreed that the meeting would be "off the record" and that the positions presented would be "without prejudice At that meeting Mr. Storie put forward a "full settlement position" and stated that although it was not an offer, he was prepared to recommend it to the Bd. if Mr. Binket told him that it would form the basis of a settlement with the Federation's bargaining committee. In an attempt to meet the Federation's concerns regarding Article 13, Mr. Stone proposed that either a special committee be formed to deal with the administration of that provision, or that the following clause be added: "Such provision shall be administered in accordance with existing practices." He also expressed a willingness to "fine-tune" that provision so as to provide for additional duties and responsibilities to be allocated to part-time teachers on a pro rata basis. When Mr. Birket indicated that the inclu­sion of the words "preparation for and the making of work for classroom" was offensive to the teachers' professionalism, Mr. Stone indicated that if that was the only aspect of the provision that the Federation could not live with, he would delete it. With respect to Article 16, Mr. Stone expressed a willingness to remove the words "in the opinion of the College" from the final sen­tence in Article 16.01, and also to delete "including the duties set out in Article 13" from Article 16.01(a). Mr. Stone also offered to reduce the proposed maximum number of teaching periods per week from forty to thirty-six, and to reduce the maximum number of teaching minutes per week from 1280 to 1152, thereby reducing the College's flexibility to assign teachers to teach extra glasses in cases of emergency or illness. Other changes embodied in the full settlement position included a reduction in the number of periods per week needed to qualify for each range of senior­ity accumulation, the addition of a clause by which the College agreed to "respond reasonably to requests by the Union to conduct Union business including membership meetings and conferences on College premises", an adoption of the Federation's position regarding access to personnel files, an increase in the maximum number of sick leave days which could be accumulated from fifteen to twenty, and an expression of willingness to permit teachers to accumulate three months' seniority while absent on maternity leave.

46. At the August 4 meeting, Mr. Storie gave Mr. Green and Mr. Birket a "discussion paper" which indicated a tentative 1987-88 teaching load and salary for each teacher. The pro­posed salary increases ranged from 5% to 21%, and averaged 7.5%. Although that discussion paper did not take the form of a grid, it was based on the grid which the Federation had proposed. Teachers whose salaries would have been reduced or left unchanged by that grid were to be given a 5% increase. Teachers whose salaries would have been increased by that grid were to be given half of the increase, with the other half to be given in the 1988-89 school year. Mr. Stone requested Messrs. Birket and Green not to convey to the membership at large the information which they had received at that meeting, but indicated that they were at liberty to disclose it to members of the Federation's bargaining committee. At the end of the meeting, Mr. Birket told Messrs. Stone and Shamie that he would get back to them as soon as possible to let them know whether or not the full settlement position would form the basis of a settlement.

47. Following that meeting, Mr. Binket talked to those members of the Federation's bar­gaining committee whom he was able to contact. However, he was unable to reach them all because some of them were away on vacation.

48. When he had not heard from Mn. Birket by August 11, Mr. Shamie (on Mr. Stone's instructions) telephoned Mr. Birket's office and left a message requesting him to return the call. When Mr. Binket did so on the following day, he told Mr. Shamie that the full settlement position was unacceptable and that it would not form the basis of a settlement. He also indicated that the Federation would be filing an application under section 40a. Mr. Shamie then discussed the situa­tion further with Mr. Storie, who was of the view that they should diffuse emotions by writing a let­ter to the teachers to advise them that the Federation had found the full settlement position to be unacceptable, to express empathy with their frustration with the bargaining process, and to further advise them that they would be receiving an interim raise of $500 effective September 1, 1987, with any further increases agreed to in negotiations to be retroactive to that date. When Mr. Shamie called Mr. Binket and told him about the letter which they were planning to send, Mr. Birket became quite upset. After telling Mr. Shamie that he had understood the August 4 meeting to be "off the record", he stated that he would regard it as a significant breakdown in trust if the meeting was subsequently "put on the record". Mr. Shamie replied that he would get back to him about the matter.

49. Mr. Shamie had earlier learned from Ms. Masur-Leitch that at least one member of the Federation's bargaining committee was unaware of the August 4 meeting and of the full settlement position that had been given to Messrs. Birket and Green at that meeting. When Mr. Shamie met with Mr. Stone to discuss the situation, it was decided that a further meeting should be held for the purpose of tabling the full settlement position with the Federation's bargaining committee. Mr. Shamie then telephoned Mr. Birket, who was amenable to that idea but was not available until August 31. During that telephone conversation, Mr. Shamie asked Mr. Birket if there was going to be a strike on the first day of classes, which was the College's main concern at that time. Mr. Birket replied, "No, there will not be a strike on the first day. If I'm turned down on my section 40a application, then I'll take a strike vote." When he was asked (during cross-examination) why the Federation had not yet taken a strike vote, Mr. Birket replied as follows: "I see this as a pretty unique negotiation. If a union takes a strike vote and goes on strike, very often the company sur­vives that. It was always the feeling of the teachers that taking a strike vote would be a short cut to all of my teachers being out of a job. I perceive the College's customers to be fairly right wing - the rich of Hong Kong. If there was a strike in the offing, I don't believe they'd stay. Therefore the place would close. Therefore I think it was responsible for me to think of it as even more of a last option than it normally is. I don't want it to close."

50. In his opening remarks at the August 31 meeting, Mr. Shamie, who was accompanied by Ms. Masur-Leitch and Mr. Harris, said that the Bd. understood and shared the teachers frustra­tion over the fact that no collective agreement had been reached despite the fact that classes were to begin in two weeks time. He also indicated that there were only ninety-seven students enrolled as of that day. After noting that he, Mr. Birket, Mr. Green and Mr. Storie had met on August 4 to discuss a settlement position, he said, "Today we are going to put to you our best settlement posi­tion - one that the three of us are willing to recommend.... This meeting is 'without prejudice', 'off the record'. This is not an offer. This is a settlement position. If you go to first contract, we will not offer this again." Mr. Birket agreed that the Federation would deal with the "without prejudice" position by not revealing it to an arbitrator, but reserved the right to disclose it to the teachers. Mr. Shamie then detailed the full settlement position described above. After that, Mr. Birket read a statement from the teachers which expressed vehement objection to what the teachers perceived to be an unjustified lack of consultation between the Bd. and the teaching staff with respect to work­ing conditions.

$1. When the meeting reconvened following a caucus, Mr. Binket stated that the Federa­tion's bargaining committee recognized that the College had made a significant move on money, but suggested that it was not enough. However, he indicated that the committee was not turning ~own the full settlement position as they wanted to discuss it with the other teachers. In response to the teachers' statement which Mr. Birket had read to the College's bargaining committee, Mr. Shamie indicated that when there is a union and collective bargaining, no discussions concerning terms and conditions of employment are allowed between the teachers and the administration. He also noted that the "freeze" under section 79 of the Act had expired, and that the College's administration had made decisions on how best to run the school efficiently, with the students being the "first priority". Following further discussion of those matters, Mr. Birket stated that the Federa­tion's bargaining committee would discuss the full settlement position with staff and that he would contact Mr. Shamie within a few days. There was then an informal meeting of members of the two negotiating teams in the absence of Messrs. Birket and Shamie. (The evidence does not disclose what occurred at that meeting.)

52. On September 3, Mr. Birket telephoned Mn. Shamie to advise him that the full settle­ment position was unacceptable to the teachers, and that the Federation would be applying for an arbitrated first contract under section 40a within the next week. As indicated above, the instant application was filed with the Board on September 11, 1987.

53. Section 40a provides, in part, as follows:

40a.-(1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minis­ter has released the report on a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

54. In commenting upon the purpose and scope of those provisions, the Board wrote as fol­lows in Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005:

16. It is clear from these provisions that the legislature has acknowledged the significance to the collective bargaining relationship of the first contract, and has given statutory recognition to the potential difficulties that may be encountered in achieving it. This remedy does not supplant the primacy of the free bargaining process; rather, it recognizes that the negotiation of the first agreement may sometimes be thwarted by unjustified intransigence. Although this is remedial legislation and should be given a liberal construction and interpretation, the scheme of section 40a does not envision the automatically imposed settlement of a first collective agreement in all cases where the parties are unable to negotiate one. What it provides is access to this remedy where certain conditions precedent have been met. These conditions are enumerated in subsec­tions (a) - (d) of section 40a(2).

17. To understand the conceptual underpinnings of the legislation, it is useful to dissect the lan­guage of section 40a(2). The Board is directed to impose settlement of a first collective agree­ment by arbitration where "it appears ... that the process of collective bargaining has been unsuccessful because of ...". The Board is thereby obliged to consider the following factors:

i) "The process of collective bargaining". The use of the word 'process' imports into the deliberation an examination of the interaction between the two parties. It is a tru­ism that the negotiation of any contract involves a considerable range of bargaining positions and tactics. It is a dynamic exchange, with each party relying as extensively as possible on those postures most likely to induce the other side to accept a tolerable result. The Board must therefore be sensitive to this bargaining reality when consider­ing how each party has conducted itself. It is the totality of the process that is under scrutiny, and the Board must be cautious not to examine the complaint in a factual vacuum. The conduct of both parties is therefore relevant, not only for understanding why the process has been unsuccessful, but also for assessing whether it has been unsuccessful for any of the enumerated reasons. This does not intend to suggest that the applicant's conduct will be a bar to the imposed settlement of a first contract, but rather that its conduct is relevant in assessing the reason for the failure of the process.

ii) "The process ... has been unsuccessful because of...". This language makes it clear that section 40a contemplates a cause-and-effect oriented assessment. Unless the applicant can demonstrate that the reason for the unsuccessful process is the employ­er's refusal to recognize the union's bargaining authority, the respondent's unreason­ably uncompromising bargaining proposals, the respondent's dilatory or unreasonable efforts to reach an agreement, or any other reason the Board deems relevant, then notwithstanding the failure to conclude an agreement, the Board is not entitled to direct its imposition. In the infancy of this legislation, it has yet to be determined what other reasons the Board may consider relevant within the meaning of section 40a(2)(d), but logic and the spirit of section 40a suggest that this will involve a case-by-case analysis of whether there is a casual connection between the "reason" in question and the failure of the collective bargaining process.

iii) "Irrespective of whether section 15 has been contravened". Section 15 of the Labour Relations Act imposes the duty to "bargain in good faith and make very rea­sonable effort to make a collective agreement". The reference to section 15 in this way can only be interpreted as making a distinction between bad faith bargaining and first contract assessments. The Board is not to be bound by whether or not the con­duct complained of violates section 15. Given the Board's jurisprudence pursuant to section 15, wherein the Board has held that hard bargaining is not necessarily bargain­ing in bad faith (T. Eaton Company Limited [1985] OLRB Rep. March 491; Radio Shack [1985] OLRB Rep. Dec. 1789), one is left with the inescapable conclusion that the legislature has intended a different standard to apply in the determination of first contact disputes, a standard peculiar to section 40a adjudications. This does not sug­gest that contravention of section 15 is irrelevant. A contravention of section 15 may well be a factor to consider in assessing why the process was unsuccessful. But the absence of sufficient facts upon which to find a contravention of section 15 does not preclude the application of section 40a. Hard bargaining may not violate section 15, but rigid bargaining proposals may, if they fall within subsections (a) - (d) of section 40a(2), justify the imposed settlement of a first collective agreement.

55. Counsel for the respondent contended that in the instant case, the process of collective bargaining has not been unsuccessful. However, we find no merit in that position. As indicated above, the parties have had over a dozen bargaining sessions during the period from December of 1986 to September of 1987. During those sessions, they have spent many hours attempting to resolve the matters in dispute between them, but have been unable to do so. On the totality of the evidence, it is quite clear that the process of collective bargaining has been unsuccessful in the cir­cumstances of this case.

56. Having found the process of collective bargaining to have been unsuccessful, we must next consider whether or not that lack of success has been caused by one or more of the conditions or circumstances listed in parts (a) to (d) of section 40a(2). In this regard, it is the applicant's posi­tion that the respondent failed to make reasonable on expeditious efforts to conclude a collective agreement. The applicant also contends that the respondent has adopted, without reasonable just­ification, an uncompromising bargaining position in respect of management rights, seniority, lay­offs, and related issues. Thus, the applicant has confined its case to parts (b) and (c) of section 40a(2), and does not rely upon parts (a) and (d).

57. The essence of the applicant's position with respect to section 40a(2)(c) is that by not agreeing to meet more frequently, and by not providing its negotiating team with a proper man­date to negotiate, the respondent failed to make reasonable or expeditious efforts to conclude a collective agreement. Counsel for the respondent acknowledged that "early on there was the odd bump", but submitted that as soon as the respondent realized that it was out of its depth and retained counsel, the situation was rectified.

58. As indicated above, the applicant gave the respondent notice to bargain on or about November 27, 1986, and the first negotiation session took place on December 8. The second nego­9ation session did not occur until almost two months later (on January 22, 1987), due to Ms. Rob­erts' other commitments. No counterproposal or other response to the applicant's proposals was tabled at that meeting. A third session was scheduled for February 10 and 11, but those dates were cancelled by Ms. Roberts. Further discussions between Mr. Birket and Ms. Roberts ultimately led to March 18 being set as the date for the parties' third negotiation session. If bargaining had continued at that pace, with intervals of nearly two months between bargaining sessions, there can be little doubt that a finding of a failure to make expeditious efforts to conclude a collective agree­ment would have been warranted. However, once Mr. Sanders' concerns about the College's ability to conduct negotiations prompted him to contact and retain Mr. Stone's law firm to represent he College in negotiations, the pace of bargaining accelerated and the Federation no longer encountered any significant difficulties in scheduling further bargaining sessions. We are also satisfied on the totality of the evidence that the Bd., through its Personnel Committee, gave the college's negotiators an adequate mandate to negotiate. Although there was some delay in provid­ing the applicant with a monetary proposal, that delay did not materially impede collective bar­gaining, non cause the process of collective bargaining to be unsuccessful. The differences between ~the parties with respect to non-monetary items were more than enough to occupy their time at the bargaining table prior to April 24, when the respondent tabled its initial monetary proposal. Indeed, it is clean from the totality of the evidence that the parties' inability to achieve a collective agreement resulted not from their monetary differences, but rather from their differences regard­ing management rights, seniority, layoffs, and related non-monetary issues.

59. For the foregoing reasons, we find that part (c) of section 40a(2) does not provide a basis for a first contract arbitration direction in the circumstances of this case. We turn next to sec­tion 40a(2)(b). Counsel for the applicant submits that the respondent has adopted, without reason­able justification, an uncompromising bargaining position with respect to management rights, seniority, layoffs, and related issues. In respect of that contention, the applicant relies upon the Board's decision in Formula Plastics mc, [1987] OLRB Rep. May 702. Respondent's counsel, on the other hand, submits that his client has not adopted an uncompromising bargaining position on any of those issues. In the alternative, he submits that the respondent has reasonable justification for the position which it has adopted regarding those matters.

60. There appears to be some merit in counsel's contention that the College has not adopted an uncompromising bargaining position regarding management rights, seniority, layoffs, and related issues. It is true that the respondent is insistent upon having a management rights clause included in the collective agreement. However, on several occasions during the course of negotiations, Mr. Shamie invited Mr. Birket to go through the wording of the management rights clause proposed by the respondent and to identify the parts of it to which his committee objected, with a view to determining whether some compromise could be achieved. By declining to do so, the Federation's bargaining committee has made it difficult, if not impossible, to determine whether or not the College has in fact adopted an uncompromising bargaining position in respect of management rights. With respect to Article 13, which was another source of considerable con­troversy between the parties, Messrs. Storie and Shamie attempted to meet the Federation's con­cerns about its open-endedness by suggesting that a special committee be formed to deal with the administration of that provision, or that a clause be added by which the provision would be admin­istered in accordance with existing practices. Mr. Storie also offered to delete the words "prepara­tion for and the making of work for classroom", in an attempt to meet Mr. Birket's concern that those words were offensive to the teachers' professionalism. The respondent also offered some compromises regarding seniority, lay-offs, and related issues. It abandoned its proposal to reduce its reliance upon part-time teachers in the 1987-88 school year and offered to maintain the status quo. Mr. Storie expressed a willingness to vary the numbers of periods per week needed to qualify for each range of seniority accumulation, and also offered to make layoff and recall decisions under Article 16 more amenable to arbitral review by removing the words "in the opinion of the College" from the final sentence of Article 16.01. He also offered to delete "including the duties set out in Article 13" from part (a) of Article 16.01. For purposes of this decision, however, it is unnecessary for the Board to conclusively determine whether or not the respondent has adopted an uncompromising position with respect to any or all of those matters as we are satisfied, for the rea­sons set forth below, that the respondent had (and has) reasonable justification for its bargaining position regarding each of those matters. Moreover, it may be that in any event, the matter of whether the respondent has adopted an uncompromising bargaining position can more usefully be considered in conjunction with the issue of "reasonable justification" than in isolation from that issue.

61. Respondent's counsel asked the Board to reject the interpretation of "reasonable just­ification" which was adopted by the Board in Formula Plastics Inc., supra. It was his submission that "reasonable justification" should be interpreted to mean: "Is there a legitimate business related reason for the proposal that is not simply a pretext?" The adoption of that approach would, in our view, constitute an unwarranted limitation on the scope of section 40a(2)(b). In this regard, we respectfully agree with and adopt the reasoning of the Board in Formula Plastics Inc., supra, in which the Board wrote as follows concerning the interpretation to be given to the word "reason­able" in that provision:

24. But was the employer's position taken without reasonable justification? Much depends on our interpretation of "reasonable" in this regard. Obviously the employer in this matter did have reasons for taking this position in the sense that it hoped to achieve a contract provision of benefit to itself. However, in our view, "reasonable" must mean something more than simply a rational relationship between a bargaining position and a party's self-interest. This test is so minimal that it would make the relief provided by section 40a(2)(b) virtually inaccessible, a result which we find inconsistent with the remedial nature of this provision. Reviewing the sec­tion as a whole, and having regard to the Board's analysis in Nepean Roof Truss, supra, and Juvenile Detention Centre (Niagara), [1987] OLRB Rep. Jan. 66, we find it difficult to conclude that the legislation was designed to do no more than ensure that parties were looking after their own interests in a logical way.

25. Rather, in our view, the word "reasonable" imports an objective element into our consider­ation of the respondent's justification for its position. It is not simply a matter of whether the justification is reasonable from the respondent's point of view, or even from the applicant's. The legislation draws us into an unavoidable assessment of whether a given proposal or position is reasonable in objective terms, a task which to some extent takes the Board into uncharted waters.

26. This is so, in part, because reasonableness is a relative concept; what is reasonable depends largely, if not entirely, upon the context in which such an examination is to be made. In consid­ering section 40a(2)(b), such a context will include both the general landscape of labour rela­tions and the specific labour relationship between the parties. In many cases such an assessment will also require the weighing and balancing of the opposing interests of the parties which they seek to pursue by way of their negotiating positions.

27. Moreover, while the Board has had occasion to scrutinize negotiations in the past, notably in the course of determining bad faith bargaining complaints, the nature of our inquiry under sec­tion 40a is significantly different. The jurisprudence developed under section 15 reflects a con­scious intention to avoid reviewing the fairness or reasonableness of negotiating proposals as an exercise in itself (see for example, Canada Trustco, (1984] OLRB Rep. Oct. 1356). Rather, the Board's interest on a section 15 inquiry centers on whether a manifestly unreasonable proposal indicates the presence of bad faith on the part of a party, or a failure to make every reasonable effort to make a collective agreement. To the extent that section 40a requires us to examine the intrinsic reasonableness of a negotiating position, it represents a departure from the jurispru­dence which has evolved under section 15.

62. Counsel for the respondent submitted, in the alternative, that the College has estab­lished reasonable justification, as defined in the Formula Plastics case, for its positions with respect to management rights, seniority, layoffs, and related issues. As indicated above, we agree with that submission. The inclusion in a collective agreement of a management rights clause of the type pro­posed by the respondent is by no means unusual. It is designed to clarify the respondent's power to manage the school. Moreover, as noted above, the College, through Mr. Shamie, expressed a will­ingness to consider, with a view to resolving, any difficulties which the Federation's bargaining committee had with any particular words in the article. However, Mr. Birket elected not to accept Mr. Shamie's repeated requests to engage in that exercise, and did not offer any counterproposal until June 24, when he offered the following provision:

The Union recognizes the right of the College to manage and conduct the business of the Col­lege except insofar as it is constrained by the terms of this agreement, and the statutes and regu­lations of laws of Ontario.

However, that language was unacceptable to the respondent, as it did not meet its legitimate concern about specifying its powers to manage the College, which was understandably a matter of par­ticular concern to the respondent during a period of declining enrolment in which the school's already substantial deficit was predicted to increase dramatically.

63. The College's proposal regarding Article 13 was a reaction to the Federation's proposal regarding "working rules", which included a provision by which teachers' attendance at activities during evenings and week-ends was to be voluntary. That provision was of considerable concern to the Bd. as it saw clubs, dances, and other extra-curricular activities, which had traditionally been supervised by teachers, as being an important part of the overall program available to the College's students, many of whom boarded at the school and, unlike their public school counterparts, were not in a position to leave school and go home after their classes finished for the day. The potential open-endedness of Article 13 was a source of legitimate concern to Mr. Birket and the other mem­bers of the Federation's bargaining committee. However, as indicated above, on August 4 Mr. Sto­ne (and on August 31 Mn. Shamie) made a reasonable attempt to meet that concern by suggesting that a special committee be formed to deal with the administration of that provision on, more importantly in the context of the reasonableness of the proposal, that a clause be added by which the provision would be administered in accordance with existing practices. With that addition, the provision was not, in our view, unreasonable in the context of a private school with a relatively small number of teachers available to perform those functions.

64. It is clear from the totality of the evidence that the parties' disparate proposals regard­ing seniority, layoffs, and related issues were a major barrier to reaching a collective agreement. The College wanted to bring itself into line with its competitors by reducing its reliance on part-time teachers. Faced with the prospect of a substantial decline in enrolment, it wished to have a layoff provision which would enable it to retain the best qualified teachers. The Federation wished to maintain the status quo regarding the College's reliance on part-time teachers, and initially tabled a proposal which did not include any provision regarding layoffs. In April, the Federation responded to the "competition" layoff clause proposed by the College by tabling a provision under which layoffs would be effected in order of seniority, with the proviso that a teacher who was "the only qualified teacher for courses planned for the following year" could be retained out of order of seniority. If the respondent had maintained its initial positions regarding those matters, it would have been more arguable that the situation fell within the purview of section 40a(2)(b). However, as indicated above, the College abandoned its proposal to reduce its reliance upon part-time teach­ers in the 1987-88 school year and offered to adopt the Federation's position of maintaining the sta­tus quo in that regard. Moreover, Messrs. Stone and Shamie expressed a willingness to remove the words "in the opinion of the College", thereby making layoff and recall decisions under Article 16 more amenable to arbitral review. They also attempted to make the provision more acceptable to the Federation by offering to delete "including the duties set out in Article 13" from part (a) of Article 16.01. The evidence adduced in this case and the Board's experience both indicate that competition clauses of the type proposed by the College, with the modifications described above, are not unusual in collective agreements. Although such clauses may not be prevalent in collective agreements between parties, such as the Federation, whose labour relationships are for the most part governed by the School Boards and Teachers Collective Negotiations Act, they do exist in the educational context, as indicated by the provisions of the T.F.S. Agreement and the Community Colleges Agreement. As indicated above, the College is faced with declining enrolment, one of the major causes of which has been identified by the College to be parents' concerns about the quality of education which is being offered by the respondent. In these circumstances, we are satisfied that the College had (and has) reasonable justification for maintaining its insistence on a layoff provi­sion with a "competition clause" format, which will enable it to retain the best qualified teachers.

65. We are also unable to characterize as unreasonable the College's position regarding accumulation of seniority by part-time employees. As indicated above, the Federation wishes to have part-time teachers accumulate seniority at the same rate as full-time teachers, notwithstand­ing the fact that the respondent's part-time teachers generally work only one-half on two-thirds as many hours as their full-time counterparts. As indicated above, the College views the Federation's position to be unfair and inequitable, and proposes a formula which specifies parameters (about which its representatives have displayed some flexibility) under which part-time teachers' seniority accumulation is to be pro rated. That proposal is, of course, consistent with the College's desire to reduce its future reliance on part-time teachers in order to bring itself in line with its competitors and to alleviate the concern which it has about a lack of commitment to the College on the part of some part-time teachers. The College's proposal is consistent with the approach which is generally found in collective agreement provisions regarding accumulation of seniority by part-time employees. Moreover, there is no evidence that the intent of that proposal is to discriminate against the College's women teachers, nor is there any evidence from which we can conclude that that would be the likely effect of that proposal in the circumstances of this case. Having regard to all of the cir­cumstances, we find that the College had (and has) reasonable justification for that proposal.

66. Having carefully considered the submissions of counsel and all of the evidence, we have concluded that the process of collective bargaining has not been unsuccessful because of the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification, nor because of the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement, as alleged by the applicant.

67. For the foregoing reasons, this application is hereby dismissed.

DECISION OF BOARD MEMBER RENE R. MONTAGUE;

1. I characterize the evidence differently than my colleagues. It is clear that the process of collective bargaining has been unsuccessful in the circumstances of this case. In my view, the Col­lege has failed to make reasonable or expeditious efforts to conclude a collective agreement, and has adopted without reasonable justification an uncompromising position in respect of manage­ment rights, seniority, layoffs, workload, full-time versus part-time and related issues, for the fol­lowing reasons.

2. The College brought itself within the scope of section 40a(2)(c) by not agreeing to meet more frequently, and by not providing its negotiating team, including Mr. Shamie, with a proper mandate to negotiate. Negotiations opened in December of 1986 and it was not until August 31, 1987 that the College's representatives said to the Federation's full bargaining committee, "Today we are going to put to you our best settlement position - one that the three of us are willing to rec­ommend". With respect to section 40a(2)(b), I believe the evidence shows the College has adopted, without reasonable justification, an uncompromising bargaining position with respect to management rights, seniority, layoffs and related issues. It is true that the College is insistent upon having a management rights clause included in the collective agreement, and I do not find that to be an uncompromising bargaining position, non one which lacks reasonable justification. However, if one looks at the clause submitted by the College, which Mr. Shamie indicated to be of prime importance to the College in order to run the school, one can only conclude that it is totally unreal­istic and unreasonable. Further, Mr. Shamie testified in evidence, "It's virtually a carbon copy of the management rights clause in the Toronto French School Collective Agreement." In reviewing Exhibit R8, I find that the management rights clause in the T.F.S. Agreement is the same as that proposed by the College with two major exceptions (which I now quote from the T. F. S. Agree­ment):

3.02 The Employer agrees that it will not exercise its functions in a manner inconsistent with the provisions of this Agreement.

3.03 The exercise of any of the above rights may be the subject matter of a grievance and/or arbitration as provided for in this Agreement.

3. With those important additions, the clause proposed by the College might have been somewhat more acceptable to the Federation. However, in proposing a broad management nights clause without them, the College adopted an uncompromising position without reasonable justifi­cation.

4. As regards the College's proposal on Article 16 (layoff and recall), absolutely no comparison can be drawn to the comparable article in the T.F.S. Agreement, which provides as fol­lows:

ARTICLE 11

SURPLUS/REDUNDANCY

AFFECTING SENIORITY TEACHERS

11.01 In the event of a surplus staff situation involving teachers with seniority, any necessary reduction in staff shall be conducted pursuant to the following procedure:

(a) The Employer shall determine the employees to be terminated and so notify the Alli­ance in writing.

(b) In the event that the Alliance is of the view that other employees than those desig­nated by the Employer ought to be laid off, the Alliance may, within ten working days, submit the matter to a Review Panel for consideration by it.

(c) The Review Panel shall consist of three members,

(i) the President of the Alliance or his designate;

(ii) the Chairman of the Board of Directors of the School or his designate who shall not be a remunerated official of the School;

(ii) the Principal of the School or his designate.

The decision of a majority of the Review Panel shall be the decision of the Panel.

(d) Should either the Alliance or the Employer be dissatisfied with the decision of the Review Panel, the matter may be submitted to arbitration within ten working days of the date of the decision of the Review Panel.

11.02 For the purposes of this Article, which shall include the decision of the Employer, any consideration by the Review Panel or an Arbitration Board, a reduction or recall of employees shall be based on the following factors:

(a) academic and professional qualifications; teaching proficiency; ability and effective­ness of the teacher; experience and ability to teach the required subject materials and the requirements of the Employer's programmes; or in the case of a non-teacher, skill, ability and qualifications to perform the required duties; and

(b) seniority with the Employer.

When the matters in factor (a) are relatively equal then factor (b) shall govern.

11.03 Employees declared surplus shall be placed on a mailing list and for a period of two years after termination shall be given first consideration for vacant positions in accordance with the principles contained in Article 11.02.

11.04(a) Should a reduction in the number of teachers be required for any reason other than an indicated decline in enrollment, the School will provide notice to the teacher of the possible termination of contract no later than November 30th in respect of the suc­ceeding academic year.

(b) Notice of possible termination of contract shall be provided to a teacher arising out of an indicated decline in enrollment no later than April 30th in respect of the succeed­ing academic year. Notice prior to April 30th will be provided if possible. Should no decline in enrollment occur the notices shall be withdrawn.

(c) Indicated decline in enrollment shall mean any anticipated decline in either the total number of students at a Division or Branch or an anticipated decline in the number of students in a particular subject or course, as determined by the School in its discretion and based on the evidence available to the School at that time.

(d) Notwithstanding the provisions of the above clauses, the School may terminate all or substantially all of the operations of any Adult Education Department of the School at any time where in the opinion of the Employer the continued operation of that Division is not in the best interest of the School, but any employees made surplus because of such action shall receive a minimum of four months' advance notice or, if the period of notice is less than four months, be paid at normal rates for such period by which the notice is less than four months. Adult Education Department teachers who are regarded as surplus shall be given first consideration for other positions in the School that become vacant, and for which there is not an eligible applicant under the provisions of Article 11.03, provided the teacher, in the reasonable judgment of the School, is qualified for such a position.

(e) Nothing in the foregoing clauses shall oblige the School to maintain the employment or remuneration of employees in those circumstances where the School is forced, by reasons beyond its control, to discontinue all or a part of its operations. The foregoing shall not entitle the Employer to discontinue the employment of an employee who engages in a lawful strike against it in accordance with the provisions of the Labour Relations Act.

5. Once again it is apparent that the College has proposed only part of the pertinent provi­sions from the T.F.S. Agreement and, in the absence of the balance of those provisions, I find that it has adopted without reasonable justification, the following uncompromising position:

Article 16 - Lay-off and Recall

16.01 In cases of lay-off and recall the following factors shall be considered:

(a) academic and professional qualifications; teaching proficiency; ability and effective­ness of the teacher; experience and ability to teach the required subject materials and the requirements of the College's programmes, including the duties set out in Article 13.

(b) seniority with the employer.

When the matters in factor (a) are relatively equal in the opinion of the College, then factor (b) shall govern.

16.02 Employees declared surplus shall be placed on a mailing list and for a period of two years after termination shall be given first consideration for vacant positions in accordance with the principles contained in Article 16.01.

The College's representatives did offer in August of 1987 to remove the words "in the opinion of the College" from the final sentence in Article 16.01, and also to delete "including the duties set out in Article 13" from Article 16.01(a). However, those were merely cosmetic changes in my view.

6. With respect to the part-time seniority issue, Article 23 of the T.F.S. Agreement reads as follows:

23.01 Remuneration, seniority and years of teaching experience in respect of any part-time teacher normally scheduled to teach ten or more periods a week shall be determined on the basis of the following accumulation of seniority:

20 periods or more a week - 1 year of seniority for each year worked

10 - 19 periods a week - 1/2 year of seniority for each year worked

less than 10 periods a week - no seniority

23.02 A part-time teacher who has acquired seniority and who is normally scheduled to teach ten or more periods a week may exercise seniority, in accordance with the principles contained in Article 11.02, in the event of a reduction in the number of teachers, in respect of any other part-time teacher with less seniority, and in respect of a full-time teacher with less seniority only in accordance with the following provisions:

• the part-time teacher may exercise seniority in respect of a full-time teacher with less seniority only if the part-time teacher is prepared to accept full-time duties;

• in the alternative, with the concurrence of the Employer (which concurrence will not be unreasonably withheld), and with the concurrence of all teachers directly affected, the teaching time available may be shared between the part-time teacher and a full-time teacher with less seniority on a rational basis not inconsistent with the needs of the School and the maintenance of appropriate standards of teaching.

23.03 It is recognised that the number of teaching periods assigned to part-time teachers may vary from year to year with the requirements of the School.

23.04 Part-time teachers shall be responsible for the performance of additional duties and addi­tional responsibilities as set out in Article 19 of this Agreement. Part-time teachers shall atend [sic] all staff meetings.

Again the College's proposal falls far short of the T.F.S. Agreement's pro rating of seniority for part-time employees. Moreover, I disagree with the pro rating system. I see seniority as being the starting date with an employer, and I am of the view that it should not be subject to change. There­fore, I would find the College has adopted, without reasonable justification, an uncompromising position in respect of accumulation of seniority by pant-time teachers.

7. Mr. Shamie and Mr. Stone went to great lengths in their testimony to state that most of the major proposals in question came from the T.F.S. Agreement. However, the clauses cannot be taken in isolation from the rest of the language in those provisions and the collective agreement as a whole. Otherwise, there will not be a true reflection of what the clauses were really intended to mean, when they are taken out of context the way they were in the College's proposals.

8. We also heard a lot of testimony that the College used the T.F.S. Agreement because it was the only pertinent private school collective agreement in the province. It should be noted that the T.F.S. is a private day school. The College, on the other hand, is a private boarding school. Thus, the only similarity is the word private, and a collective agreement which might well fit in the T.F.S. (private day school), will not fit or meet the needs of the teachers of a private boarding school.

9. The teachers joined the Federation, which went into collective bargaining to provide job security, which is the essence of unionism, and better working conditions. Collective bargaining should not now be used by the College to correct, at the expense of the teachers, its deficit, which was there prior to the Federation coming on the scene.

10. The unresolved clauses are the crux of any collective agreement and the Federation recognises that agreeing to such clauses in the form proposed by the College would mean sheer destruction of the Federation, and absolutely no job security for any of its members at the College.

11. Teachers who join a union should not be faced with losing rights and privileges they enjoyed prior to the union coming on the scene. In the totality of the circumstances of the present case, including the College's deficit, the serious outstanding issues, and the length of time collec­tive bargaining has taken, I am firmly of the opinion tht the situation cries out for a first contract arbitration direction.

12. As a result of the majority decision, the Federation now has but one recourse - confron­tation - and that, it is my understanding, was what the legislation was meant to prevent.