Abramowitz v. Ontario Public Service Employees Union, 1987 CanLII 3247

[1987] OLRB Rep. April 455

1875-84-U; 2689-84-U; 0088-85-U J. Abramowitz and B. Lyons, Complainants v. The Ontario Public Service Employees Union, The Ontario Council of Regents for Colleges of Applied Arts and Technology, and The Board of Governors, Sher­idan College of Applied Arts and Technology, Respondents; Robert McElhinney (and all other complainants listed on Schedule 'A' to the complaint), Complain­ants v. The Ontario Public Service Employees Union, The Ontario Council of Regents for Colleges of Applied Arts and Technology, and The Board of Gover­nors, Sheridan College of Applied Arts and Technology, Respondents; Robert B. Livesey, Michael Perretta, F. Wannamaker and Jim Makela, Complainants v. The Ontario Public Service Employees Union, The Ontario Council of Regents for Colleges of Applied Arts and Technology, and The Board of Governors, Sheridan College of Applied Arts and Technology, Respondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members F. C. Burnet and L. Collins.

APPEARANCES: C. Hilimer, J. Abramowitz and B. Lyons for the complainants in Board File No. 1875-84-U; C. Hilimer and R. McElhinney for the complainants in Board File No. 2689-84-U; C. Hillmer and I. Makela for the complainants in Board File No. 0088-85-U; Ian Roland, Kevin Whi­taker, Ron Martin and Grant Bruce for The' Ontario Public Service Employees Union; F. G. Ham­ilton and Terence J. Blundell for the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Board of Governors, Sheridan College of Applied Arts and Technology.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER L. COLLINS; April 29, 1987

1. These are complaints under section 77 of the Colleges Collective Bargaining Act (also referred to in this decision as the "Act") in which the complainants allege that they have been dealt with by the Ontario Public Service Employees Union (referred to in this decision as "OP­SEU" and as the "Union") contrary to section 76 of the Act, which provides:

An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees, whether members of the employee organiza­tion or not.

(For ease of exposition, the duty imposed by that provision, and by the equivalent provision found in section 68 of the Labour Relations Act, will be referred to from time to time in this decision as the "duty of fair representation".)

2. The complaints were consolidated by the Board on the first day of hearing. However, on the sixth day of hearing, the parties advised the Board that they had agreed that the Board should hear the complaint of Jane Abramowitz and Brian Lyons (in File No. 1875-84-U) in its entirety, and that the other complaints (File Nos. 2689-84-U and 0088-85-U) should be held in abeyance, on the understanding that this panel of the Board would remain seized of them and would apply to those complaints all of the evidence adduced in these proceedings, in the event that the other complainants subsequently elected to proceed with their complaints. (For ease of exposi­tion, the term "complainants" will be used in the remainder of this decision to refer solely to Ms. Abramowitz and Mr. Lyons, unless otherwise indicated.)

3. During the eleven days of hearing of this matter, the Board heard the testimony of twelve witnesses. In addition to that oral evidence, the Board has before it twenty-four affidavits, which were admitted as evidence on the agreement of the parties, and 105 exhibits, which were entered during the course of these proceedings. Following the completion of the evidentiary por­tion of the proceedings, the parties agreed to submit written argument to the Board, on the under­standing that the Board would subsequently hear oral argument unless the parties agreed that it was unnecessary for the Board to do so. Pursuant to that arrangement, the complainants filed over 135 pages of detailed, written argument. The Union responded with forty-four pages of written submissions. A written response was also filed by counsel for the Ontario Council of Regents for Colleges of Applied Arts and Technology (the "Council") and Sheridan College of Applied Arts and Technology ("Sheridan College"). The complainants subsequently filed fifty-five pages of written reply argument with the Board. On October 23, 1986, the hearing of the matter concluded with oral argument.

4. In making the findings of fact set forth in this decision, the Board has carefully consid­ered all of the aforementioned oral and documentary evidence, the oral and written submissions of the parties, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and considered the inferences that may rea­sonably be drawn from the totality of the evidence.

5. The primary thrust of the complainants' case is that the Union contravened section 76 of the Act by:

(1) bargaining in bad faith and failing to make a reasonable effort to conclude a collective agreement in its 1984 negotiations with the Council, and

(2) intentionally misleading the complainants with respect to those nego­tiations.

6. Section 5 of the Act requires the Council and the Union to meet within thirty days from the giving of notice to bargain and to "negotiate in good faith and make every reasonable effort to make an agreement" (or to renew the agreement, as the case requires). The analogous provision of the Labour Relations Act is section 15. (For ease of exposition, the duty imposed by section 5 of the Colleges Collective Bargaining Act, and by section 15 of the Labour Relations Act, will be refer­red to from time to time in this decision as the "bargaining duty".) Enforcement of the section 15 bargaining duty falls to the Board in proceedings under section 89 of the Labour Relations Act (or to the Courts in circumstances in which the Board finds it appropriate to give consent to prosecute under section 101). Enforcement of the bargaining duty imposed by section 5 of the Colleges Col­lective Bargaining Act, on the other hand, is not within the Board's jurisdiction. Under section 56(1)(f) of the Act, it is the duty of the College Relations Commission (the "Commission") "to determine, at the request of either party or in the exercise of its discretion, whether or not either of the parties is or was negotiating in good faith and making every reasonable effort to make or renew an agreement". (The only other enforcement mechanism for the section 5 bargaining duty is prose­cution which, by virtue of section 89(6) of the Act, cannot be instituted without the consent of the Board.)

7. In the context of the Labour Relations Act, the Board has consistently held that employees do not have status to assert a violation of the bargaining duty imposed on the trade union and the employer by section 15 of that legislation. See, for example, Canadian General Electric, [1980] OLRB Rep. Aug. 1179, in which the then Chair of the Board wrote, in part, as fol­lows in dismissing a complaint in which ten employees alleged that their employer had violated what is now section 15 of the Labour Relations Act by bargaining in bad faith with respect to a pen­sion plan:

8. Section 14 [now section 151 reads:

"The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement."

Sections 13, 15, 35, 37, and 42 [now sections 14, 16, 41, 44, and 50], together with the scheme of the Act reflected in many other provisions, make it clear that the parties to a collective agree­ment are the employer and the trade union, although the employees in the defined bargaining unit are undoubtedly bound by the agreement. See for example Re Governing Council of the University of Toronto and Service Employees Union, Local 204 (1974), 1974 CanLII 2377 (ON LA), 5 L.A.C. (2d) 304 (Weatherill). Thus, on the clear words of the statute, we are of the view that the obligations and duties contained in section 14 are matters of legal interest only to these parties.

That case involved an attempt by bargaining unit employees to establish a contravention of section 15 by their employer. However, the Board has indicated that similar considerations apply in the context of a complaint by bargaining unit employees that their trade union has contravened section 15 of the Act. In K-Mart Distribution Centre, [1981] OLRB Rep. Oct. 1421, a group of K-Mart employees alleged that their trade union had contravened a number of provisions of the Labour Relations Act, including section 15, by signing a collective agreement on the basis of certain terms of settlement which had been rejected by a narrow majority of bargaining unit employees. In dis­missing that complaint, the Board wrote, in part, as follows:

27. The complainant contends that by concluding a collective agreement on terms which the majority of the bargaining unit had previously rejected, the trade union was "bargaining in bad faith". There is no merit to this contention. In the first place, a group of individual employees does not have status to assert a violation of section 15. The section, by its terms appears to cre­ate obligations and regulate relations only as between the trade union and the employer (see Canadian General Electric, [1980] OLRI3 Rep. Aug. 1179)....

See also Dominion Stores Limited, [1985] OLRB Rep. Jan. 71.

8. Thus, the Board has consistently held in the context of the Labour Relations Act that employees do not have status to assert that their trade union or their employer has violated the duty to bargain in good faith and make every reasonable effort to make a collective agreement. That position is supported by sound labour relations policy considerations, and is equally applic­able in the context of section 5 of the Colleges Collective Bargaining Act. The bargaining duty imposed by those provisions is owed by the trade union to the employer, and vice versa. Just as the trade union bargaining with the employer is in the best position to know whether or not the employer is living up to its legal responsibilities under the bargaining duty, so too is the employer bargaining with the trade union in the best position to know whether or not the trade union is ful­filling its legal responsibilities in that regard. Each of the parties at the bargaining table is also in the best position to determine whether it would serve the interests of collective bargaining to file a complaint alleging a contravention of the bargaining duty by the other party, and whether or not to proceed with such a complaint once it has been filed. In the instant case, the Council filed such a complaint with the Commission (under section 56(1)(f) of the Act), but ultimately elected not to proceed with it. The Union instructed its counsel to prepare a similar complaint against the Coun­cil, but ultimately elected not to file such a complaint. To permit bargaining unit employees on an individual or group basis to seek enforcement of the bargaining duty by means of a complaint alleging a violation of the Union's duty of fair representation would be a totally unwarranted instance of permitting an individual or group to do indirectly what they would not be permitted to do directly, and would not, in our view, further harmonious relations or serve any other valid labour relations purpose. Moreover, it could have the detrimental effect of giving rise to conflicting rules of substantive law. As noted above, enforcement of the section 5 bargaining duty is not within the jurisdiction of this Board. It can only be enforced by the Commission (under section 56(1)(f) of the Act) or by the Courts (in circumstances in which the Board finds it appropriate to give consent to prosecute under section 89(6) of the Act). Thus, if the Board were to construe sec­tion 76 of the Act as providing a vehicle by which the scope of an employee organization's obliga­tions under section 5 of the Act could be adjudicated, it is possible that the Board's interpretation of the bargaining duty in that context would conflict with the Commission's interpretation of that duty in the context of proceedings under section 56(1)(f) of the Act. In that regard, the fact that the Legislature made it the duty of the Commission (and not this Board) to determine, at the request of either party or in the exercise of its discretion, whether or not either of the parties is or was negotiating in good faith and making every reasonable effort to make or renew a collective agreement, provides further support for our conclusion that section 76 was not intended by the Legislature to be, and is not, a vehicle by which bargaining unit employees can substitute this Board for the Commission as the body responsible for interpreting the bargaining duty in the con­text of the Colleges Collective Bargaining Act.

9. In his able written submissions on behalf of the complainants, Mr. Hillmer acknowl­edged that there is no Board jurisprudence supportive of the complainants' position that although bargaining unit employees have no status to bring a complaint alleging a breach of section 5 of the Act, they can nevertheless use section 76 of the Act to obtain an adjudication of the issue of whether or not their bargaining agent has contravened the bargaining duty which it owes to their employer. However, he contended that, as a matter of law, a violation of a trade union's duty to bargain in good faith and make every reasonable effort to make a collective agreement constitutes a breach of its duty of fair representation. The sole case which he cited in support of that conten­tion was Swatts v. United Steelworkers of America (1984), 116 LRRM 2110 (U.S. District Court for the Southern District of Indiana). In that case, the plaintiffs were workers who were left without jobs following an unsuccessful strike at a steel plant. The Court declined to grant the respondent trade union's motion for summary judgment on the plaintiffs' claim that the union had breached its duty of fair representation by bargaining to an impasse over a non-mandatory subject, namely the inclusion of two new plants in the bargaining unit. The Court recognized that the union's action, if proved, would constitute an unfair labour practice by the union vis-a-vis the employer. However, it also indicated that if the plaintiffs proved that the union had acted to sacrifice the jobs of certain members in an attempt to increase the size of the bargaining unit and thereby increase its own strength, a breach of the union's duty of fair representation "would probably be shown", as a lack of the "complete good faith" and "honesty of purpose" required of a union by that duty in the con­text of negotiations "would probably be present". Although the adjudication of the union's unfair labour practice vis-a-vis the employer fell within the jurisdiction of the National Labour Relations Board, the Court found that it had jurisdiction to adjudicate the plaintiffs' claim that the union's actions contravened its duty of fair representation. In reaching that conclusion, the Court observed (at page 2118) that the "[National Labour Relations] Board's primary responsibility is adjudication of unfair labour practices where the union or the employer is the aggrieved party, not where the union allegedly acted wrongly to harm its members.... Where the employer is not involved ... the Court sees no danger of disrupting national labor policy or encountering conflicting rules of sub­stantive law by retaining jurisdiction."

10. We do not read the Swatts case as authority for the proposition that, as a matter of law, a violation of a trade union's bargaining duty constitutes a breach of its duty of fair representation. Such a proposition is clearly untenable. A trade union might, for example, breach its bargaining duty by taking to impasse a demand for work assignment which could form the subject matter of a jurisdictional dispute (see, for example, Toronto Star Newspapers, [1979] OLRB Rep. Aug. 811). However, conduct of that type, which is intended to advance what the trade union perceives to be the best interests of the employees whom it represents, would not likely constitute a contravention of the trade union's duty of fair representation. The same might also be true of a trade union's attempt to extend its bargaining rights by pressing that matter to impasse in collective bargaining (see, generally, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, at paragraph 29, and United Brotherhood of Carpenters & Joiners of America, [1978] OLRB Rep. Aug. 776). What the S watts case does appear to indicate is that facts which might lead to a finding that a trade union has breached the bargaining duty which it owes to an employer might also, in some circumstances, support a finding that the trade union has breached the duty of fair representation which it owes to bargaining unit employees. We respectfully agree with that conclusion. However, the issue in such a case would not be whether the trade union has bargained in good faith and made every reason­able effort to make a collective agreement; it would be whether the trade union has acted in a man­ner which is arbitrary, discriminatory, or in bad faith in the representation of any of the employ­ees. Indeed, the question of whether or not the trade union has contravened the bargaining duty which it owes to the employer would be irrelevant in such proceedings.

11. For the foregoing reasons, it is neither necessary nor appropriate in these proceedings to determine whether or not the Union breached the duty which it owes to the Council to negotiate in good faith and make every reasonable effort to make an agreement. Having carefully considered all of the bargaining actions of which Ms. Abramowitz and Mr. Lyons complain, including the high priority which the Union gave to its workload proposal (as described below), the Union's strict adherence to its timetable for negotiations, its insistence on receiving a "last offer" at a time when items other than workload had received very little discussion, and its uncompromising conduct dur­ing mediation, we have concluded that the Union did not act in a manner that was arbitrary, dis­criminatory, or in bad faith in the representation of the complainants. The gist of this aspect of the complainants' case is that the Union conducted the negotiations with no intention to conclude a collective agreement. However, the evidence does not support that allegation. To the contrary, the evidence clearly indicates that the Union was quite intent upon concluding a collective agreement, but wished to do so on terms that included a workload formula, which was its primary objective in the 1984 negotiations. It is not the function of this Board to comment on the wisdom of the approach which the Union adopted, or to "second guess" its decisions concerning the bargaining tactics which it chose to employ in an effort to achieve that objective. Differences of opinion regarding those matters must be resolved through the Union's political processes, not through pro­ceedings such as the instant complaint.

12. Having had the benefit of reading the dissent of our colleague, Board Member F. C. Burnet, we respectfully disagree with his conclusion that the Union contravened section 76 of the Act "by refusing to receive the Employer's offer of September 25". Section 59(1) of the Act stipu­lates a number of conditions which must be fulfilled before any employee covered by the Act can lawfully strike. One of those conditions, under clause (d) of that subsection, is that "the offer of the Council in respect of all matters remaining in dispute between the parties last received by the employee organization that represents the employee is submitted to and rejected by the employees in the bargaining unit by a vote by secret ballot conducted under the supervision of and in the man­ner determined by the Commission". (For ease of exposition, that offer will be referred to in this decision as the "offer last received".) On August 30, 1984, during the course of mediation, the Union requested and obtained from the Council an "offer last received" within the meaning of sec­tion 59(1)(d). The vote contemplated by that provision was conducted on September 18. The offer last received was rejected by approximately 95% of the voters. Mediation resumed on September 24. On the following day, the Council sought to present a new written offer to the Union through the mediator. Although the members of the Union bargaining committee were willing to consider any proposals which the Council was prepared to make orally through the mediator, they were not willing to receive a written offer as they were concerned that such an offer might give rise to confu­sion regarding whether or not it was an "offer last received" requiring another last offer vote. Although they were personally of the view that such an interpretation of section 59(1)(d) was not warranted as it would enable the Council to extend negotiations indefinitely by tabling a series of "offers last received", they were aware that a somewhat similar issue had arisen during an earlier round of negotiations with respect to the support staff bargaining unit, and that it had caused con­siderable confusion. Their profound distrust of the Council's representatives also played a role in their adoption of that position, as they "did not want any tricks to be played."

13. Having thoroughly discussed with the mediator their position and the concerns which prompted them to adopt it, the members of the Union bargaining committee were very surprised when the mediator came to their caucus room on September 25 and announced that he was adjourning mediation and that management was "on their way down" with an offer. In an attempt to gain time to think about the situation and to confer with counsel, Ronald Kelly, who (as described later in this decision in greater detail) was the chairperson of the Union bargaining com­mittee, asked the mediator to "stop them". When the mediator returned a few seconds later and indicated that the Council's representatives were outside the door, Mr. Kelly told him that the Union bargaining committee would not talk to them. The mediator then went to the doorway, opened the door, and stated simultaneously to the Council representatives outside and the Union representatives inside, "I can see no way in which I can facilitate a settlement at this time. I am therefore adjourning mediation." He then turned to the Union representatives, said "Management has an offer for you", and walked away, letting the door close behind him. The Council represent­atives then knocked on the door three r four times, but the Union representatives did not open the door or otherwise acknowledge their presence. (There is conflicting evidence concerning whether the door was locked or unlocked at that time. It is unnecessary to resolve that conflict as, in our view, it is irrelevant in the context of this complaint.) In order to "buy time", the Union represent­atives decided to exit the room with their hands in their pockets, and their briefcases tucked under their arms, so that the Council representatives would be unable to deliver the new offer to them. As it turned out, those precautions were unnecessary; when they entered the corridor, no one was there.

14. The Council caused copies of the new offer to be delivered to the Union's headquarters and to Mr. Kelly's hotel room later that day. A copy was also forwarded to his home by courier. Mr. Kelly sought legal advice before opening the offer, which by that time had been made public by the Council. Copies of the offer were also sent by the college presidents to all of the faculty me­mbers in the bargaining unit at their homes. The new offer was unacceptable to the Union bargain­ing committee as it did not contain a workload formula or offer any other solution to the workload problems which had been raised and discussed at length at the bargaining table; it simply withdrew the Council's proposal (included in the August 30 "offer last received") that the teaching hour and contact day limits contained in the 1983-84 collective agreement be eliminated. The new offer also contained a "take away" proposal regarding sick leave benefits, and a monetary offer which was unacceptable to the Union bargaining committee. The terms of that offer were discussed with fac­ulty members by members of the Union bargaining committee who visited college campuses prior to the strike vote which was conducted on October 2. Over 75% of the faculty members who voted marked their ballots in favour of a strike, thereby implicitly rejecting the Council's offer of Sep­tember 25. That offer continued to be a source of controversy between the parties until October when the mediator provided the Union bargaining committee with an assurance that the Coun­cil did not intend it to be an "offer last received" within the meaning of section 59(1)(d) of the Act.

15. For the reasons described above, it is neither necessary nor appropriate for us to com­ment on whether or not the Union's actions regarding the Council's offer of September 25 were violative of its bargaining duty. For purposes of this complaint, it is sufficient to record our conclu­sion that its actions regarding that offer did not contravene its duty of fair representation, as they were neither arbitrary nor discriminatory, and were not taken in bad faith. Those actions were taken with a view to maximizing the Union's bargaining power, and avoiding unduly protracted negotiations, by maintaining strict adherence to the Union's timetable for negotiations, which called for a strike vote to be conducted on October 2, a written strike notice to be issued on October 11 (pursuant to section 59(1)(f) of the Act), and a strike to commence at midnight on October 16, unless a settlement had been reached by that time. (For the foregoing reasons, we also make no comment on whether or not the Union's strict adherence to that timetable violated the bargain­ing duty which it owed to the Council.)

16. As noted above, the second basis upon which the complainants seek to establish a con­travention of section 76 is their allegation that the Union intentionally misled them with respect to the 1984 negotiations. The gist of that aspect of the complainants' case is that the Union "con­ducted those negotiations with no intention to conclude a collective agreement, while systemati­cally misleading its membership regarding its intentions and actions". As indicated above, we have concluded that the evidence does not support the complainants' allegation that the Union con­ducted the 1984 negotiations with no intention to conclude a collective agreement. However, it remains for us to determine whether the Union's communications with members of the bargaining unit concerning the negotiations were violative of its duty of fair representation.

17. The Union holds bargaining rights for approximately 7,600 academic employees (also referred to in this decision as the "faculty") at Ontario's twenty-two colleges of applied arts and technology (the "colleges"). The Union's bargaining proposals are prepared through a two-stage process. Proposals are formulated and priorized by the locals at each of the colleges, and are sub­sequently assembled in a "demand book" which is circulated to each of the locals prior to the pro­vincial demand setting meeting. Three delegates from each college attend that meeting to priorize those demands and finalize what is to be included in the Union's bargaining proposals.

18. For a number of years, workload has been an issue of considerable importance to the Union and to many of faculty whom it represents. In 1975, an arbitration award provided the par­ties with some parameters as a starting point for future negotiations concerning that contentious issue. Various intervening events, such as the passage of the (Federal) Anti-Inflation Act, pre­cluded the parties from dealing with that issue in depth prior to 1981. In preparation for the 1981 negotiations, the Union's negotiating team conducted a workload survey. The 1,800 responses which were tabulated clearly demonstrated that many faculty members were of the view that there was a serious workload problem in the colleges. In response to the need (identified by a factfinder) or a common data base respecting workload, the parties established an Employer/Employee Rela­tions Committee, which conducted a workload survey early in 1982. During the 1982 negotiations, the Union proposed a workload formula based upon a formula which was in use at Ryerson Poly­technical Institute (the "Ryerson formula"). The parties spent a considerable amount of time dis­cussing that formula during those negotiations. In commenting on that issue, the factfinder (ap­pointed pursuant to section 8 of the Act) recommended that the parties continue to study the issue and suggested that they expand their data base respecting it. Negotiations concerning that issue ceased with the passage of the Inflation Restraint Act. In the fall of 1983, the parties conducted a second joint workload study, the results of which did not differ significantly from their first joint study, which itself had yielded results similar to the Union's initial survey.

19. The Union held its 1984 (provincial) academic demand setting meeting on March 31 and April 1, 1984. Following a presentation of the priorities put forward by each of the colleges, dele­gates priorized the demands by secret ballot. That vote assigned top priority (by a substantial majority) to "instructional assignments". In the demand setting portion of the meeting, motions and discussion concerning that matter resulted in a workload formula (similar to the one tabled by the Union in the 1982 negotiations) being proposed as the Union's top priority. Proposals on other issues, including seniority and salaries, were also adopted at that meeting, and a seven-person negotiating committee was elected. As indicated above, the chairperson of that committee was Ronald Kelly, who also served as its spokesperson. Mr. Kelly was an experienced negotiator who had been elected to the Union's (academic) bargaining committee in each of the previous five years. He had also been the president of his OPSEU local since 1977.

20. A motion was also passed at that meeting that a bulletin in tabloid form be prepared (for distribution to all members in the academic bargaining unit) containing the following informa­tion:

1. Our major bargaining demands and the rationale for them.

2. A special feature on our workload demand, showing system-wide workload trends and comparisons with other post-secondary teachers and inability of our contract to protect our members, and examples of how the new workload formula would operate.

3. A special feature on how workload increases in the colleges are dam­aging the quality of education.

21. Pursuant to that motion, 8,200 copies of a newsletter called the CAAT Calendar were printed. Over 5,700 of those copies were mailed to Union members in the academic bargaining unit in June of 1984. Other copies were distributed in bulk on college campuses. Although it was not received by all of the faculty, we are satisfied on the totality of the evidence that the Union took reasonable steps to arrange for its distribution by mail and by bulk distribution. That publica­tion contained a number of articles concerning workload, including the following which appeared as two of the "lead stories":

New workload credits proposed

Discussion on Article 4, Instructional Assignments, has begun between the parties. The union has suggested revisions which, if adopted, will credit faculty with teaching hours and the related work which teachers must perform before entering and after leaving classes, labs, clinics, field placements - wherever teachers are assigned to work with students.

Related work includes course preparation, student evaluation, curriculum development, special assignments, travel time, and consideration of the additional time which must be allotted to teachers when teaching in more than one language.

It is proposed that the colleges continue to maintain teaching schedules which include maximum teaching hours per week (although not as high), and maximum teaching hours per year (also somewhat reduced), and a limit on the number of contact days per year (also open to negotia­tion).

Further, it is proposed to establish a limit on the number of student contact hours per employee, i.e. the sum of the number of students scheduled for each contact hour assigned to an employee.

The term, "contact hour" would be understood to mean any fifty (50) minute period or less in which an employee is assigned by the college to meet with one or more students. This is the standard contact hour prevailing in the colleges today, as established by a joint faculty/management survey undertaken by the Employer/Employee Relations Committee.

The proposal includes provision for premium payments when any maxima are exceeded, and when employees are assigned to teach between 6:30 p.m. and 6:30 a.m., or on Saturdays or Sun­days.

Course Preparation

The union proposes that course preparation be credited on a time scale that varies in accordance with whether a) the course is a new course, not taught in the last three years; or b) a repeat of last year's course; or c) an additional section or sections of the same course

Student Evaluation

Management has been asked to agree that student evaluation takes time and that such time must be credited as part of a teacher's workload.

The proposal calls for teachers and immediate supervisors to agree in advance on the hours required for curriculum development, i.e. the design of a new course or the revising of an exist­ing course, and special assignments such as committee work, course co-ordination, or research projects (to name a few).

The same agreement is called for when employees are required to teach in more than one lan­guage or when an employee undertakes an assignment that requires travel.

The faculty negotiating team proposes that the aggregate credit of assigned contact hours and related work shall be limited to a weekly maximum.

Changes have been proposed to ensure that the College Instructional Assignment Committee can function more efficiently and that faculty can seek redress through grievance when that committee doesn't resolve disputes concerning inequitable workload and onerous assignments.

Finally, it is proposed that in each college there shall be one counsellor for each unit (or part thereof) of 500 students and that additional counsellors be appointed when counsellors are required to do work with other than college students.

All our work counts: Faculty

There's more to teaching than classroom presentations. There is a continuous need for teachers to prepare for each class, evaluate student achievement, develop and review curriculum, plan and supervise field placement of students, and more.

This is the message being brought to college administrators by the negotiating team elected to represent the 7,000 teachers, librarians and counsellors in Ontario's 22 Colleges of Applied Arts & Technology.

"For years the management of the colleges has measured the worth of teachers in terms of the number of hours spent in the classroom," explains Ron Kelly, chairperson of the CAAT Aca­demic negotiating team. "It's time that management agreed to count not only the teaching hours but the related work which teachers must perform each week."

That related work includes preparation, evaluation, student contact and counselling, field work and job placement, travel time to off-campus assignments, committee membership, curriculum review and development, academic research, professional development and special assignments such as the production of learning material for widespread college use.

Management proposes instead to eliminate all limits on assigned teaching hours per week and assigned teaching days per year, and does not propose to give greater consideration to related work.

"we aren't giving any thought to limits on assigned teaching hours per week," says lawyer Chris Riggs, chief negotiator for the Council of Regents acting on behalf of the Boards of Governors, the administrators and the management of the colleges.

Riggs explains that management wants the right to assign unlimited teaching hours per week in what he describes as "chunking" - assigning massive numbers of teaching hour for periods of many weeks followed by weeks without teaching hours.

In those non-teaching weeks, faculty will be directed to perform work such as the production of teaching material, supervising field placement, and other duties deemed appropriate by college managers.

The academic negotiating team has proposed to Riggs and the college administrators that there be a revision of the present contract provisions governing the work of faculty. The present pro­visions are largely unchanged from those that applied in 1967/68 when the colleges were estab­lished.

It is anticipated that the Union's proposed revision will serve several purposes. It will allow for change and continued expansion of Ontario's highly successful colleges of applied arts and tech­nology. It will ensure equitable workloads for all teachers, maintain standards and guarantee students a better education.

That publication also expressly warned faculty members that a strike might well be necessary in order to obtain significant changes in working conditions in view of the Committee of Presidents' prediction that "no significant changes in working conditions will take place before a major work stoppage". (The Committee of Presidents is comprised of the twenty-two college presidents.)

22. A folder containing the following information, as well as the workload proposal which the Union had tabled with the Council in May of 1984 and the workload provision from the July 1, 1983 to June 30, 1984 collective agreement between the Ryerson Faculty Association and the Board of Governors of Ryerson Polytechnical Institute, was distributed to the members of the bar­gaining unit (by their divisional delegates) in September of 1984:

Good teaching takes a lot of effort. There's a lot of work to be done before a teacher enters a class. There's a lot of evaluation of student effort to be done outside classes.

You can't stand before a class day after day, or work with students in laboratories hour after hour without current notes, overheads, audio-visual aids, and projects for students.

Nor can you ask a student to spend days researching and writing term papers if you aren't pre­pared to spend considerable time evaluating and commenting on the student's research and efforts.

Incredibly, the people controlling Ontario's community colleges don't know this or they just don't care.

THIS IS THE ISSUE THAT ISOLATES COLLEGE MANAGEMENT FROM FACULTY AND STUDENTS

In management's view, the only measure of a teacher's effort is the number of hours spent in classrooms and laboratories. For obvious reasons there is a limit on the number of those hours. However, management wants to remove the limits.

Management proposes to eliminate all limits on assigned teaching hours per week and assigned teaching days per year, and does not propose to give any consideration to the related work that is part and parcel of good teaching.

College faculty could be assigned unlimited hours per week in classrooms. They could be assigned to work around the clock - seven days a week.

This is management's response to the growth and success that has distinguished the colleges since they were established in 1966/67.

Ontario's colleges have been dynamic institutions. They have grown until today they serve 120,000 full-time students. There are 600,000 registrations in part-time day and evening courses. The students may come directly from high school, or they may be workers who need skills upgraded or updated.

As our response to the needs of our students, faculty representatives have proposed amend­ments to the Collective Agreement for Academic Employees in the colleges. Specifically, fac­ulty have called for a review and reorganization of the constraints governing teaching and learn­ing. Management refused the review.

We have proposed that colleges and faculty can better serve students now and in the future when teaching assignments are considered in conjunction with the related work necessary for good teaching.

That related work includes preparation, evaluation, student contact and counselling, field work and job placement, travel time to off-campus assignments, committee membership, curriculum review and development, academic research, professional development and special assignments such as the production of learning material for widespread college use.

Management won't hear of it. They won't give faculty credit for any effort other than hours spent in the classroom.

The faculty proposed that the basis for the review and revision could be found in the agreement reached between faculty and management at Ryerson Polytechnical Institute. Ryerson was the model which served to shape the colleges initially. But college management refused to consider the ways and means by which Ryerson remains dynamic.

The center pages of this folder spell out the terms of the most recent workload Article in force at Ryerson. Contrast the provisions of that Article with the Union's proposed "Instructional Assignments" Article printed below and on the back page of this folder.

As you read and compare these related Articles, remember that the negotiators for college man­agement say that the provisions of this sort are unworkable, impractical and offensive to the professionalism of faculty.

But why, if it works at Ryerson wouldn't it work in Ontario's community colleges? And why won't college management agree to revise and review the constraints which interfere with the continued growth and success of the colleges?

23. The complainants are critical of those and other communications because they lack numbers, calculations, and examples. However, having decided, in a legitimate exercise of their discretion as a bargaining committee, to table a workload formula containing no numbers, in an attempt to concentrate on negotiating the principle of a workload formula which recognized that a faculty member's job consists not only of teaching but also of "related work" (including course preparation, student evaluation, and curriculum development), and having further decided to defer any discussion of numbers until that principle had been accepted by the Council, the bargain­ing committee did not act arbitrarily, discriminatorily, or in bad faith by omitting those numbers from its communications with faculty. In this regard, we note that it is not the Board's function under section 76 of the Act to determine whether the CAAT Calendar and the folder quoted above complied in all respects with the aforementioned motion; that is an internal Union matter beyond the purview of section 76. It is sufficient for the purposes of this case to indicate that the evidence as a whole falls far short of establishing that those numbers were intentionally withheld from the membership in order to mislead them with a view to ultimately precipitating a strike which would not have occurred if the membership had been better informed about the Union's demands, as alleged by the complainants.

24. In reaching that conclusion, we have duly considered all of the evidence that was adduced before us, including the evidence concerning what was said to Ms. Abramowitz and Mr. Lyons (in the presence of Mr. Lyons' wife) on October 31, 1984 by Bob Smith, the Union's local chief steward at Sheridan College. At that time, the faculty were on strike and there was consider­able resentment against Mr. Lyons and Ms. Abramowitz by persons on the picket line at Sheridan College. Mr. Smith was concerned about the potential aftereffects of that resentment. He was also concerned that the instant complaint, which had been filed by Mr. Lyons and Ms. Abramowitz on October 15, 1984, might prolong the strike by making it appear that the Union was divided and that the strike might collapse. Accordingly, he and another Sheridan College faculty member arranged to meet with Mr. Lyons and Ms. Abramowitz at Mr. Lyons' home to request that they participate in the strike to mollify their colleagues, and that they defer their complaints until after the strike was over. During the course of those informal discussions, Ms. Abramowitz asked Mr. Smith why numbers had not been included in the Union's communications to faculty concerning the proposed workload formula. In response to that question, Mr. Smith expressed his personal opinion that the numbers were not disclosed prior to the strike vote because many faculty members did not come to Union meetings, did not understand the bargaining process, would have been very concerned about the proposed numbers, and would not have supported the Union as they would not have understood that the numbers simply constituted a bargaining position. Ms. Abramowitz then asked Mr. Smith, "Do you mean we wouldn't have given you the strike vote?" Mr. Smith's response was, "That's exactly what I mean." We accept Mr. Smith's candid and credible evidence that those comments were merely his personal opinion. He was not a member of the bargaining committee and was not consulted by that committee (nor by any other Union official) regarding strategy. No such rationale was discussed at the provincial demand setting meeting, nor did any member of the bargaining committee or other Union official advise Mr. Smith of that rationale. Under the circumstances, Mr. Smith's statement, although understandably troubling to the com­plainants, does not by itself, or in combination with the other evidence adduced in these proceed­ings, establish a contravention of section 76 of the Act.

25. The Board has construed the duty of fair representation to include an obligation on the part of a trade union to fairly and honestly disclose, to the persons whom it represents, the terms of an employer's offer, when it elects to disclose the offer to them. See, for example, The Corpora­tion of the City of Thunder Bay, [1983] OLRB Rep. May 781, at paragraphs 88 - 90:

26. A union's ability to decide when to disclose an offer to its membership is central to its effec­tiveness as a bargaining agent. It may decline to take an offer back for a vote of its members until it gets what it sees as an acceptable offer. That is, of course, subject to the option of the employer under section 40 of the Act, which can be exercised only once, to request a supervised vote of the employees on its last offer.

27. If a union has no positive duty to bring an offer back to the membership, it does have a duty of fair and honest disclosure when it does so. A union which falsifies or misrepresents an employer's offer violates its fundamental trust as the agent of the employees. Deliberate or reckless misrepresentations respecting the terms of an offer are inconsistent with the "good faith and honesty of purpose" inherent in the duty of fair representation. For example in Diamond "Z" Association, [1979] OLRB Rep. Oct. 791 the Board found that a union violated the stan­dards of section 68 when it misrepresented to its members that a wage settlement would be ret­roactive and subsequently executed a collective agreement, without further notice to them, knowing it would not.

28. There are few reported cases in the U.S. dealing with the misrepresentation of facts in bargaining by a union to the employees it represents. That is not surprising as it is fair to assume that the fundamental duty of a union to deal honestly with the employees it represents is so established that it seldom gives rise to litigation. In the limited number of cases where it has the Courts have left no room for doubt: knowing or deliberate misrepresentation by a union in statements made to employees or a failure to disclose critical facts is inconsistent with the duty to represent employees honestly and in good faith. (Humphrey v. Moore 55 LRRM 2031 (1964), U.S.S.Ct.); Anderson v. United Paperworkers International Union 103 LRRM 2803 (U.S. Dist. Ct. Minn.). In Trail v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 93 LRRM 3076 (1976, C.A. 6th Cir.) the Court ruled that a violation of the duty of fair representation would be established if the evidence confirmed allegations that the union deliberately withheld disclosure of contract terms from the employees affected because it had justifiable fear that they would be voted down.

In that case, the Board also indicated that where an employee asks his or her bargaining agent a specific question about the terms of an alternative offer, the union has a duty to answer openly and honestly.

26. It was not suggested in the instant case that the Union failed to fairly and honestly dis­close the terms of the "offer last received", which was provided by the Council through the media­tor on August 30, 1984. There was also no evidence of any misrepresentation by the Union with respect to the terms of the Council's subsequent offer of September 25, 1984, copies of which were provided by the Colleges to everyone in the bargaining unit.

27. It is unnecessary to detail all of the Union documents and oral statements by Union offi­cials on which the complainants rely in support of their case. As might be expected, those docu­ments and statements reflect partisan opinions and, accordingly, contain some emotional rhetoric and exaggerations. There is an element of "salesmanship" and propagandizing in many of those communications, somewhat akin to that which often obtains in union organizing drives. In recogni­tion of the realities of collective bargaining (which is a process which often generates as much heat as it does light), and in recognition of the significant degree to which the personal opinions of col­lective bargaining participants may vary on such matters as the likelihood of a negotiated settle­ment, the likelihood or desirability of a strike, the usefulness of factfinding, the qualifications of a particular factfinder, the characterization of various acts or omissions of a mediator, and the rea­sonableness of various bargaining positions, this Board is no more inclined to monitor with micro­scopic precision communications between a union and bargaining unit employees in this context, than it is in the context of union organizing drives. The "line of regulation" which has been drawn between "salesmanship" and "improper conduct" in the latter context is that of "fundamental mis­representation": see, for example, Leon's Furniture Limited, [1982] OLRB Rep. March 404, at paragraph 11. ("Coercion and intimidation" are also proscribed in that context.) In adopting that approach, the Board has expressly recognized that "the intricacies of collective bargaining can be difficult to explain", and that "the organizing process undoubtedly involves controversy and salesmanship" (see, for example paragraph 10 of that decision). The same is true of the process by which unions inform bargaining unit members about what has occurred at the bargaining table and What is expected to occur in the future. Thus, we are of the view that a similar approach is apt in the context of union communications with members of the bargaining unit with respect to such col­lective bargaining matters as the likelihood of a negotiated settlement, the likelihood or desirabil­ity of a strike, the usefulness of factfinding, the qualifications of a particular factfinder, the charac­terization of various acts or omissions of a mediator, and the reasonableness of various bargaining positions, to the extent to which such communications fall within the purview of section 76 of the Act. In this regard, we would note that it is not to be expected that all of the members of a bar­gaining committee, or others involved in the collective bargaining process, will share identical views on such matters, or convey identical information to members of the bargaining unit regard­ing them.

28. Having carefully reviewed and considered all of the written and oral communications which are impugned by the complainants in these proceedings, we have concluded that no funda­mental misrepresentation has been established by the complainants, and that the evidence does not support the complainants' allegations that OPSEU has acted in a manner that is arbitrary, discrimi­natory, or in bad faith in the representation of any of the employees.

29. The complaints also alleged that the Union contravened section 76 by "acting in an arbitrary manner which was discriminatory and in bad faith toward the Complainants through the manner in which it dealt with their concerns regarding the conduct of the negotiations by the Res­pondent's negotiations team." However, that allegation is not supported by the evidence.

30. For the foregoing reasons, having regard to the totality of the evidence and the submis­sions of the parties, the Board finds that no contravention of section 76 of the Act has been estab­lished. Accordingly, the complaint in File No. 1875-84-U is hereby dismissed. The complaints in File Nos. 2689-84-U and 0088-85-U are hereby adjourned sine die for a period not to exceed one year from the date of this decision. Unless a request that the Board proceed with one or both of those complaints is received by the Board from a party thereto within that period, they will also be dismissed.

DECISION OF BOARD MEMBER F. C. BURNET;

1. While I am in agreement with a number of interpretations and rulings set forth in the decision of my colleagues, I dissent in others, as set forth in the following.

2. I concur with the conclusion in paragraph 8 of the majority decision that the duty to bargain in good faith lies between the employer and the trade union and that the employees do not have status to challenge either of them on that score; and that the authority to enforce Section 5 of the Colleges Collective Bargaining Act lies with the Commission under that Act and not with this Board.

3. I am in accord with the view of the majority in paragraphs 9 and 10 that violation of a trade union's duty to bargain in good faith does not, as a matter of law, constitute a breach of its duty of fair representation; that facts which might lead to a finding that a union has breached its bargaining duty to an employer might also support a finding of breach of the fair representation duty to employees, but that, in that case, the issue would be whether the union has acted in a man­ner that is arbitrary, discriminatory or in bad faith in the representation of employees, and not the issue of bad faith bargaining with the employer.

4. I also conclude with my colleagues that those actions of the union on which the com­plainants base their allegations, such as the high priority which the union accorded its workload proposal, the union's strict adherence to its bargaining timetable, its insistence on receiving a "last offer" at a time when items other than workload had been scarcely discussed, and its uncompro­mising attitude during mediation, are not inconsistent with the duty of fair representation and I would not sustain the charge on those grounds. However, I do not so believe in respect of the union s refusal to receive the employer's offer of September 25, and I conclude for reasons follow­ing that the refusal was arbitrary and constituted a dereliction of the union's duty in the representa­tion of its members.

5. The facts are that on September 25, one week before the strike vote scheduled for October 2, the union refused to receive an employer offer from the mediator, who was then shut­tling between the parties in an hotel in conventional mediation fashion. The union closed the door of its rooms to prevent entry of any employer representative who it was feared, might deliver an offer. Similarly, the union executed a careful exit from the hotel in a manner to prevent any lurk­ing employer representative from thrusting an offer into their unwilling hands. The apparent rea­son for this somewhat bizarre behaviour was that the union feared that such an offer would consti­tute an offer "last received" which under section 59(1)(d) of the Act would have to be submitted to an employee vote, and thereby disrupt the scheduled strike vote. (A vote on the employer's initial offer of August 30 had already been held on September 18.) It was also established in examination of union witnesses that the union refused to receive the September 25 offer without having had any prior intimation of its contents.

6. Jurisprudence on the fair representation issue has firmly established that falsification or misrepresentation of an employer's offer violates the union's fundamental trust as the agent of the employees and therefore violates the duty of fair representation. In my opinion, refusal to even receive an offer (which, incidentally, in this case did deal substantively with the issue of workload and salaries) is tantamount to denial that any offer was tendered, which clearly constitutes misre­presentation. By its action, the union deliberately placed itself in a position where it could not dis­close to employees the true position of the employer. It sought a strike mandate from employees while suppressing information that is vital to any such employee decision, and which it is the pri­mary obligation of the union to secure and provide.

7. That is not to say or imply that the union is obliged to endorse or publicize or justify any such offer. It may criticize, deride, condemn and recommend against it, and in most legislative jurisdictions it is not obliged to submit any or all offers to a vote. What it cannot do, without viola­tion of its duty of fair representation, is to suppress such offer.

8. It may well be that the timing and content of an offer by either party may be tactically inconvenient or disadvantageous to the other, because of legislative requirements, seasonal consid­erations or other reasons, but that is not a valid basis for refusing to even receive an offer and pre­tending or maintaining to employees that the reality does not exist. In the instant case, the ques­tion as to whether it would or should trigger a vote is not before us and I make no judgment on that score, beyond noting that, if so, and if the union believes it cannot cope or is unfairly disad­vantaged, the recourse lies in the legislative arena, and not in abrogation of the duty of fair repre­sentation.

9. Neither is it a defence to argue, as the union has, that the offer was publicized by the employer before the strike vote and that the employees were therefore well informed. That argu­ment might be relevant to any assessment of damages that the complainants may have suffered through the union's misdemeanour, but not to the principle involved. The duty of fair representa­tion lies with the union, and not the employer.

10. I concur that the evidence does not adequately support the complainants' allegation that the union conducted the 1984 negotiations with no intention of concluding a collective agreement, or that the union's communications with the membership were so deficient as to sustain the allega­tion in that respect.

11. I would accordingly sustain the complaint to the extent of declaring that the union vio­lated its duty of fair representation by refusing to receive the employer's offer of September 25th.