[1988] OLRB Rep. July 641
0288-88-FC; 0287-88-U Ontario Secondary School Teachers' Federation, Applicant/Complainant, v. Alma College, Respondent
BEFORE: Rosalie S. Abella, Chair, and Board Members W. H. Wightman and N. Wilson.
APPEARANCES: Maurice Green, Fred Birket, Steven Prettie and Elizabeth Jackson for the applicant/complainant; D. K. Gray, G. F. Luborsky and D. F. Harris for the respondent.
DECISION OF ROSALIE S. ABELLA, CHAIR AND BOARD MEMBER N. WILSON; July 8, 1988
1These proceedings are brought pursuant to sections 40a, 15, 66 and 70 of the Labour Relations Act. The proceedings were consolidated on consent. The day after the hearing, on May 12, 1988, the Board issued a decision which read:
Re Board File 0288-88-FC and section 89 complaint File No. 0287-88-U between Ontario Secondary School Teachers' Federation and Alma College. This is to advise that the Board has endorsed the record in the following manner: "Before R S Abella Chair and Board members W H Wightman and N Wilson. Decision of the Board: By majority decision, the Board finds that Alma College has committed an unfair labour practice. The Board further finds that the requirements of section 40a of the Labour Relations Act have been established and therefore directs the settlement of a first collective agreement by arbitration. The persons to be reinstated forthwith by the respondent shall include Steve Prettie and Liz Jackson. A written decision will follow. Rosalie S. Abella for the Majority. Dated May 12th 1988".
The following are the reasons.
2A differently constituted panel of the Board dismissed an earlier application by the union pursuant to sections 40a (2)(b) and (c) on December 23, 1987. Since that decision, five negotiating sessions took place in 1988 between the parties - on January 14, 27, February 4, 18 and March 1. The first of these meetings resulted in substantial progress, with the parties agreeing at its conclusion to use a mediator at subsequent sessions.
3At the February 4 meeting, Fred Birket, the union's chief negotiator, told Alma College that the teachers felt they had gone "90% of the way" on the issues. On February 4, the union told the College that they had fixed February 15 for "sanctions". A strike did in fact take place on February 15. At the February 18 meeting, both parties felt some urgency, knowing that a prolonged strike would result in the loss of students. On February 28, Birket and a member of union officials met with the teachers and obtained their agreement to settle on Alma's terms.
4By the end of the March 1 meeting, the union had agreed to all but two of the College's proposals: the first was Alma's contention that recall was strictly a management right and not subject to discussion with the union; the second and less significant to the union was the College's proposal that only salaries, rather than all economic issues, were to be subject to arbitration during the second year of the agreement.
5On April 20, Birket called and arranged a meeting for April 25 with Alma's chief negotiator, Steven Shamie, in Shamie's office. Birket was prepared to accept the College's terms but was told by Shamie at the outset of the meeting that there were some conditions of settlement and that "the biggest one may cause you to walk". This critical condition was the College's proposal that no one in the bargaining unit would actually be recalled. Five full-time and two part-time of the twelve teachers in the bargaining unit would be named and would be paid as of the ratification date, but replacement workers were to continue teaching until the end of the school year. When Shamie gave Birket the names of the teachers who were to be "notionally" recalled, Birket indicated that he not only had concerns about the legality of the proposal, but also that he could see no rationale behind the teachers who were named in terms of the students' needs - one was on pregnancy leave until June 15 and the other was an art teacher, most of whose students had left.
6Two of the teachers with the highest union leadership profile, Steve Prettie, the main union organizer and a teacher at Alma for 15 years, and Liz Jackson, who was on the union's negotiating team from the outset of the contract negotiations, were not on the notional recall list. Two other teachers on the negotiating team were on the list, but did not have the same leadership role as Prettie or Jackson. Birket was concerned not only with their exclusion, but with the use of replacement teachers for the balance of the school year when the practice at the College had been to set examinations based on the whole year's work.
7The school term ended on March 5 for a spring break until March 21. During this break, the College advertised for substitute teachers. It hired them on a per diem basis and subject to termination on 2 days' notice or 2 days' pay in lieu of notice. Seven full-time and two part-time substitute teachers were hired. Most of the substitute teachers did not have teaching certificates. Only the typing teacher and the physical education teacher of the twelve striking teachers did not have certificates. The Chairman of Alma's board, Donald Harris, gave evidence that by mid-April he felt it "unwise" and "disruptive" to introduce a "new" group of teachers to replace the substitutes who had been there for 3 weeks. He gave no further explanation or justification for his conclusion. It was his intention to keep the substitute teachers until the end of classes at the end of May and until the end of examinations and marking in the second week of June. Harris stated that the seven teachers he selected for notional recall were chosen on the basis of qualifications and seniority, discussions with the substitute teachers and the Acting Principal, but were not carefully picked because it was only a 'notional' recall and intended for the September classes. The substitute teachers used student note books to prepare their classes. In Harris' view, he knew the students could do better with their own teachers than with the substitutes who were unfamiliar with the school or its teaching methods, especially since there was a closer relationship between students and teachers in a boarding school like Alma than in a day school, but he felt he had a 'Nobson's Choice' to make. There was no one on the recall list who could teach Mathematics, as Prettie could, or Family Studies, as Jackson could, but it was Harris' intention to rely on volunteers from the community.
8The College's other conditions of settlement included a ban on picketing as of the signing of the memorandum of settlement; Alma's ability to pay being subject to getting a line of credit from the Bank; retroactivity pay being available to everyone for the period from September to February 15 except for two weeks Alma felt had already been paid; the College's formula on pay being adopted; any settlement being subject to the return by the teachers of the College's books and chattels; and the dropping by both parties of all outstanding picketing charges. By the date of the hearing on May 11, all conditions proposed by the College had either been agreed to by the union or dropped by the College, except the replacement worker issue. Birket reacted very strongly to this condition, told Shamie it was "the one thing I can't get the team to move on", and it was clearly the major obstacle to any settlement. On May 10, the day before this hearing, Alma offered to pay to the union in trust the amount it would have given to the five full-time and two part-time notionally recalled teachers, for the union to distribute as it saw fit.
9It was clear that by March 1, the union had significantly reduced its demands and largely accepted the College's proposals. An ongoing strike was in neither party's interest, given Alma's tenuous financial position and the real prospect that enrollment would suffer further from a prolonged strike. Nonetheless, at the meeting between Shamie and Birket on April 25, Alma stipulated seven conditions precedent to signing an agreement. Of these, one, the notional recall, can fairly be characterized not only as provocative to striking teachers, but as Shamie himself admitted, a 'real problem' which Alma anticipated could be destructive of the possibility of settlement. The notional recall list was designed without considering the actual teaching needs of the students. It was produced only one month after substitute teachers had started teaching, with almost 2 months of school remaining and 5 1/2 months completed by the striking teachers.
10In the context of a boarding school where student-teacher relationships acquire a unique dimension, and where examinations were to take place in 6 weeks based on a whole year's work, only 1 month of which the substitutes had taught, the proposal can only be seen as an attempt by Alma to obstruct the union, avoid bargaining in good faith, and to avoid the immediate return to work of teachers who had been leading or involved with the union. Although Alma's evidence was that the decision was based on a desire to avoid disruption for the students, there was no explanation as to why it would be more disruptive to recall the striking teachers, many of whom had long-standing relationships with the students and some of whose students would in fact be graduating, than to retain substitute teachers who, at the time the decision to keep them was made, only had a 3 week relationship with the school and the students. It is difficult to arrive at any conclusion but that Alma was at least in part motivated by a desire to avoid signing a collective agreement, avoid negotiating the conclusion of the strike, and avoid the return to work of the union supporters. We therefore find that sections 15, 66, and 70 of the Labour Relations Act have been violated.
11We are also satisfied that the concept, timing, and proposed implementation of the notional recall represents not only an uncompromising and not reasonably justified bargaining position, but also the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement, pursuant to section 40a of the Act. The "avoidance of disruption" justification is simply not, without any articulated basis or explanation as to why substitutes were less disruptive than the permanent teachers, objectively reasonable when placed in the context of the bargaining history of these parties or of the long-standing relationship between the striking teachers and the students. Proposed as they were during a critical and what was supposed to be a conclusive meeting, the seven conditions, and particularly the notional recall proposal, represent the attempt to avoid rather than expeditiously conclude a collective agreement. Shamie himself acknowledged at the outset of the April 25 meeting that he understood that these proposals, and particularly the recall one, would likely be intolerable to the union and an insurmountable impediment to the signing of a collective agreement. It is not a question of whether a notional recall as a concept offends the Act; it is a question of whether such a proposal, in circumstances such as these, is, as we have here found it is, deliberately and unreasonably obstructive both of good faith bargaining and of the possibility of concluding a collective agreement. We therefore direct the settlement of a first collective agreement by arbitration.
12Because our direction pursuant to section 40a should eliminate the impediments to the making of a collective agreement which a section 15 finding would otherwise require us to remedy, we order with respect to the violation of this section only that the respondent remove the notional recall proposal from its bargaining proposals. As to the violations of sections 66 and 70, we direct that the persons to be reinstated forthwith include Steven Prettie and Liz Jackson. We will remain seized in the event that there is any difficulty in implementing the Board's directions.
DECISION OF BOARD MEMBER W.H. WIGHTMAN; July 8, 1988
1When the parties were given the majority decision in these matters on May 12, I respectfully dissented.
2It is correct that at the April 25 meeting between Shamie and Birkett the College "stipulated seven conditions precedent to signing an agreement". However only three of the seven were discussed at length since the representatives of both parties assumed the remaining four would pose no impediment to settlement. By May 4 the College advised the union it had withdrawn one of the three remaining conditions, precedent, regarding salary calculations, and that it was prepared to submit a second, regarding retroactivity, to "rights" arbitration following execution of a collective agreement.
3Thus as a panel of the Board we arrive at a common perception that the "notional" recall with full pay was the "real problem" before us, but was this to be taken as evidence of Alma having been motivated, even in part, by a desire to avoid a collective agreement, the conclusion of the strike and the return to work of the union supporters?
4As reported in the majority decision, on May 10, the day before hearing, the College did indeed make a "with prejudice" offer to pay to the union in trust the amount it would have given to the five full-time and two part-time notionally recalled teachers, for the union to distribute as it saw fit. This offer was made to resolve a disagreement as to the identity, but significantly not the numbers of teachers who should be recalled. Moreover it should be stressed that the offer to pay the teachers in full and excuse them from any teaching duties for the balance of the current school year was an integral part of the "notional recall" proposal from the time it was first articulated by Shamie to Birkett at their April 25 meeting. I find it impossible to conclude that by effectively putting an employee on leave with full pay an employer can be seen to have violated the spirit or the letter of the Labour Relations Act.
5Further evidence of the College being reconciled to the fact that it was now obliged to conclude and live with a collective agreement is to be found in the evidence as to the terms of employment for replacement teachers. The evidence before us is that it was made clear to these persons at their time of hiring that they might be terminated with two days notice and that in any event upon resumption of classes after the summer vacation they would be replaced by the "regular" teachers. I can only interpret such a forewarning as being indicative of an expectation on the part of the College that a collective agreement would be reached and the strike concluded if not during the current school term at least before the start of the next school year.
6The proposal by the College that the method of calculating salaries be referred to rights arbitration following execution of a collective agreement is to my mind further indication that the College, through its unpaid Directors, was if not of an attitude to joyfully embrace collective bargaining at least resigned and resolved to live with the reality.
7Moreover, I would adopt the argument that since a return to work protocol does not find its way into the terms of a collective agreement, the representatives of the parties had in fact resolved all matters relevant to what would have been the written agreement once ratified and hence the applicant did not bring itself within the ambit of section 40(a).
8Nor do I attach great weight to the fact that two of the teachers not proposed for notional recall were union organizers since two other persons known to be among the organizers were also among those whom the College did propose to notionally recall. In any event, as noted earlier, the May 10 offer to let the Union sort out who should be paid, while it might have involved an embarrassing decision for the union, was nonetheless a fair and practical solution for the College to have made.
9Finally, I turn to the efforts of the majority to assess the relationship between the students and teachers, both regulars and replacements, since the majority, in part at least, appear to have been influenced by an apprehension that students would have been closer to their "regular" teachers.
10For my part I would have accepted that those persons with overall responsibility for the operation of the College were best positioned and therefore entitled to have their explanation as to the reasons for their decision accepted.
11For all of the above reasons I would have dismissed these applications.