[1992] OLRB Rep. February 141
2180-92-U Ontario Public school Teachers' Federation, Applicant v. Leeds and Grenville County Board of Education, Responding Party
BEFORE: Susan Tacon, Vice-Chair, and Board Members G. O. Shamanski and P. V. Grasso.
APPEARANCES: L. A. Richmond, M. Glassford, H. Vigoda and R. Frith for the applicant; Barry Brown and Joe McKeown for the responding party.
DECISION OF THE BOARD; February 5, 1993
This is an application pursuant to section 91 of the Labour Relations Act. As initially filed, the application alleged contravention of a number of sections of the Act. At the hearing, it was apparent that the gravamen of the application was an alleged violation of the statutory freeze provision, namely, section 81 [formerly section 79]. Argument was restricted to that section. What is at issue is whether the wages and benefits paid to certain of the employees in the bargaining unit constitutes a contravention of the freeze.
There is no dispute that the statutory freeze was in force at all material times. Nor is there a dispute that the grievors are currently employees in the bargaining unit represented by the applicant. The parties reached agreement on the further facts relevant to this application. It is useful to set out that agreement in full at this juncture:
STATEMENT OF AGREED FACTS
The Ontario Public School Teachers' Federation (hereinafter referred to as the Complainant Union) represents occasional teachers employed by the Leeds and Grenville County Board of Education (hereinafter referred to as the Respondent).
The Complainant Union was certified by the OLRB as bargaining agent for "all occasional teachers employed by the Leeds and Grenville County Board of Education in its elementary schools in the Leeds and Grenville County, save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act". Copies of the certificate issued by the Board and of the Board's decision are attached as Exhibit 1.
Paragraph 1(1)31 of the Education Act defines "occasional teacher" as follows:
"'Occasional Teacher' means a teacher employed to teach as a substitute for permanent, probationary, continuing education teacher or temporary teacher who has died during the school year or who was absent from his regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year."
The Labour Relations Act applies to occasional teachers. Collective bargaining with respect to statutory contract teachers is governed by the School Boards and Teachers Collective Negotiations Act. Teachers employed on statutory form contracts are not covered by the certificate issued to the Complainant Union.
The statutory form contract teachers employed by the Respondent in its elementary schools are represented by the Complainant Union and by the Federation of Women Teachers' Association of Ontario. The current collective agreement, with a term of September 1, 1991 to August 31, 1993, is attached as Exhibit 2.
Article 13.10 of Exhibit 2 provides as follows:
"13.10 Occasional Teacher
(a) Where it is anticipated that a qualified teacher must be employed in excess of thirty (30) consecutive teaching days to replace another teacher on contract, the qualified teacher shall sign an open-ended terminal contract to extend over a mutually agreed-upon time. She shall be entitled to all benefits applying to members covered by this Agreement from the date the contract is executed by the Board and shall be entitled to salary in accordance with her appropriate grid position, having regard to her qualifications and recognized experience, retroactive to the first day of teaching.
(b) A qualified teacher who is employed as an occasional teacher as defined in the Education Act, shall be paid at the rate, which shall be deemed to include allowance for vacation pay, established by the Board from time to time for the first twenty (20) consecutive teaching days. On the twenty-first (21st) consecutive teaching day, and thereafter until completion of the occasional teacher assignment, such occasional teacher shall be paid at the rate, which shall be deemed to include allowance for vacation pay, established by her qualifications and recognized experience in relation to the salary grid. An occasional teacher shall not be given a teaching contract nor shall she be entitled to participate in any benefit plan as provided in Article XI hereof nor to accumulate credit for sick leave or seniority purposes.
(c) Teachers who are on leaves of absence or who teach part time may be hired by the Board as occasional teachers and shall be subject to the above provisions.
NOTES:
An open-ended terminal contract means a contract to extend to the end of the school year or until the teacher being replaced returns to duty, if such return is before the end of the school year.
The teacher being replaced by a qualified occasional teacher who has signed an open-ended terminal contract shall notify her Principal one full teaching day in advance of the date on which she intends to return to duty.
In the event that occasional teachers as that term is defined in the Education Act should acquire collective bargaining rights under the Labour Relations Act of Ontario, this Article shall be deemed to be null and void as of the date on which such collective bargaining rights are required. [sic]
Prior to the certification of the Complainant Union as bargaining agent of occasional teachers employed by the Respondent, where it was anticipated that a "replacement" teacher would be hired for more than thirty (30) days, as was the case with the grievors, they signed Exhibits 3 and 4 (as amended by their individual circumstances) and received all the benefits applying to members covered by the collective agreement (Exhibit 2) and received salary in accordance with their qualifications or recognized experience retroactive to the first day of teaching as set out in 13.10(a) of Exhibit 2. Union dues were levied and paid in accordance with Exhibit 2.
The grievor, Jane Gaw, and all other grievors in her position prior to certification, were paid in the manner specified in paragraph 6 where the position was expected to last more than 30 days which meant she received approximately $141.00 per day and all benefits that applied to members covered by the collective agreement (Exhibit 2).
Following the certification of the Complainant Union, the grievors and others whom, it was anticipated, would be hired for more than thirty (30) days did not sign Exhibit 3 and 4 but rather signed Exhibit 5 and did not receive the same form of payment as referred to in paragraph 6, but rather were paid as follows:
For the first 20 days, a daily rate of $123.00.
From the 21st day following, a daily rate based upon qualifications and recognized experience and the salary paid for contract teachers.
No benefits were paid or received.
Prior to certification, when "replacement" teachers were hired for an assignment expected to last less than 30 days, they were paid in accordance with the rate set out in paragraph 8 herein and signed Exhibit 5 (as amended by their individual circumstances.)
Prior to certification, the grievors filled positions expected to last more than 30 days as advertised in Exhibit 6. After certification, the grievors filled positions expected to last more than 30 days as advertised in the form of Exhibit 7.
Had the provisions of Article 13 of Exhibit 2 been operative at the time of the hiring of the grievors after certification as "replacement" teachers for more than 30 days, they would have signed Exhibit 3 and 4 and would have received the salary and benefits provided in Article 13.10(a) of Exhibit 2.
The Board next sets out the submission of counsel in highly abbreviated form.
Counsel for the applicant reviewed the statutory freeze provision and the jurisprudence, asserting that the purpose of the section was to provide a period of stability while the parties were establishing their collective bargaining relationship or renewing their collective agreement. In counsel's view, the Board need not conclusively determine whether the persons in question were "occasional", "contract" or "hybrid" teachers as, whatever their formal status, the recognized pattern of their employment relationship prior to certification had changed and was now inferior to the wages and benefits enjoyed previously. However, counsel further argued that the grievors were persons described in Article 13.10(a) of the collective agreement between the responding party and the applicant union (and the Federation of Women Teachers' Association of Ontario) (hereinafter referred to as the "collective agreement"). It was contended that the grievors were occasional teachers within the meaning of the Education Act and the fact that the responding party required those teachers to to sign a probationary teacher's contract in addition to a letter of employment did not serve to change the grievors' status from occasional to probationary. Counsel submitted that the effect of Note 3 in the collective agreement was to extinguish the collective agreement provisions relating to occasional teachers if occasional teachers acquired collective bargaining rights under the Labour Relations Act since the bargaining agent of those occasional teachers would then have the right to bargain on their behalf. Counsel urged the Board to find the statutory freeze provision had been violated, to so declare and to compensate those suffering losses occasioned by the breach. Counsel asked that the Board remain seized in the usual course and issue a direction that the wages and benefits be maintained until the conclusion of a collective agreement or until the parties were in a legal strike/lockout position. Cases referred to in support: Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859; Simpsons Limited, [1985] OLRB Rep. Apr. 594; Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49.
Counsel for the responding party submitted that the bargaining unit for which the applicant union was certified excluded probationary and regular teachers. Further, it was asserted that, because a probationary teacher's contract was signed by the persons in question, they could not be occasional teachers and, hence, were not employees in the bargaining unit at the time of the freeze, although they had become bargaining unit members subsequently. That is~ counsel contended that Article 13.10(a) of the collective agreement referred to probationary contract teachers notwithstanding that article was headed "occasional teachers". These probationary teachers had simply agreed at the point of hiring to the termination of their contract on a specific date or on the return of the teachers they replaced. Counsel stated that the responding party had paid, subsequent to the freeze, all occasional teachers (regardless of whether they worked more than or fewer than 30 days) on the basis those persons in Article 13.10(b) had been paid prior to the freeze. Since, in counsel's view, the Article 13.10(a) teachers were not occasional teachers, their wages and benefits were not caught by the freeze. In effect, there were no Article 13.10(a) "occasional" teachers prior to the freeze whose wages and benefits were frozen. Thus, the responding party, it was argued, had not altered anything; all occasional teachers were paid according to the rates in Article 13.10(b) prior to and subsequent to the imposition of the freeze. In the alternative, counsel submitted that, if there was a change, that did not constitute a statutory violation as the union must be taken to have granted consent to such change by negotiating Note 3 in the collective agreement which extinguished Article 13 in its entirety as of the date collective bargaining rights were obtained for occasional teachers. Further, counsel noted that replacement teachers who had worked more than 30 days must be regarded as cognizant of their status as contract teachers and of Note 3, their reasonable expectations would be that Article 13.10(b) rates would be applicable once the occasional teachers were certified. Cases cited included: Spar Aerospace Products, supra; Simpsons Limited, supra.
In reply, applicant counsel rejected the interpretation of Article 13.10(a) asserted by counsel for the responding party as inconsistent with the structure of the article and its substantive content, including the three notes therein. Counsel argued that the provisions and purpose of the probationary teacher's contract was inconsistent with the terms of the employment letter signed by the replacement teachers and the mere signing of the probationary teachers contract at the responding party's behest did not make those persons probationary teachers as contemplated by the Education Act. Finally, counsel noted that the effect of Note 3 in Article 13 was not prior consent by the applicant union to a change in wages and benefits but merely to extinguish Article 13. What remained - and what was caught by the freeze - were the wages and benefits paid prior to certification.
In the Board's view, the grievors were (and are) occasional teachers. That conclusion is consistent with the definition of occasional teachers in section 1(1) of the Education Act as:
“……a teacher employed to teach as a substitute for a permanent, probationary, continuing education or temporary teacher who has died during the school year or who is absent from his or her regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year...".
The grievors, prior to certification, were employed in excess of 30 consecutive teaching days to replace another teacher on contract. The grievors signed letters of employment which specified the quantum of the assignment (e.g. 0.9, 0.8) and the "terminal basis" of their employment to the earlier of the end of the school year or the date on which the (named) teacher being replaced returned to work. Further, the existence of this category of occasional teachers is expressly contemplated by Article 13.10(a) of the collective agreement.
The interpretation of the collective agreement urged by counsel for the responding party is not compelling. Article 13.10 on its face deals with occasional teachers of three types, as noted in subsections (a), (b) and (c). It would do violence to the contractual language and the structure of the article to interpret 13.10(a) teachers as not "occasional" within the meaning of the Educational Act but "statutory form teacher" (specifically, probationary teachers). For example, Article 13.10(a) refers to "open-ended terminal contracts" and that term is defined in Note 1 of Article 13.10 as a "contract to extend to the end of the school year or until the teacher being replaced returns to duty, if such return is before the end of the school year". The Educational Act does not speak of open-ended terminal contracts but, rather, prescribes precisely, in the regulations, the form of contract to be entered into by probationary and permanent contract teachers. In the Board's view, Article 13.10 is a provision negotiated between the bargaining agent for statutory form teachers and the school board which sets out terms and conditions of employment of occasional teachers who are not members of that bargaining unit. The article expressly contemplates the possibility of certification of occasional teachers under the Labour Relations Act (in contrast to statutory form teachers whose labour relations are governed by the School Boards and Teachers Collective Negotiations Act). In such event, as stated in Article 13.10 Note 3, the article shall be deemed null and void as of the date on which such collective bargaining rights are acquired. In short, the parties to the collective agreement have negotiated a comprehensive provision in that agreement concerning occasional teachers unless and until that group is certified under the Labour Relations Act.
The Board is not persuaded by the submissions of counsel for the responding party that the fact that the grievors also signed a document entitled Probationary Teacher's Contract resulted in the grievors becoming statutory form teachers. Article 13.10(a) contemplates and requires that occasional teachers sign open-ended terminal contracts, not statutory form contracts. Further, the provisions in the probationary teacher's contract, taken together, are not descriptive of or consistent with the terms of employment of the grievors at the relevant time as described in Article 13.10(a) and as reflected in the letters of employment signed by the principal of the school and the teacher. The probationary teacher's contract is intended to provide a school board with the opportunity to evaluate a teacher's performance, to assess whether the school board wishes to offer the teacher a "regular" teaching post. The letter of employment and Article 13.10(a) (and Note 1) refer to a period of less than one year, commencing with the absence of the teacher being replaced and terminating at the earlier of the date that teacher returns or the end of the school year. The Article is directed to the replacement of a regular or probationary teacher on leave of some sort and only for the duration of the leave or until the end of the school year. A longer term relationship is not envisaged for this category of teachers. The interpretation asserted by counsel for the responding party that the earlier of the end of the school year or the date on which the teacher being replaced returned to work "constitutes the prior agreement by the teacher and the school board to terminate the agreement "at any time by mutual agreement in writing" of the teacher and the school board is not persuasive. In this regard, it should also be noted that the probationary teacher's contract requires the signatures of the chairman of the school board and the secretary of the school board, under the seal of the school board and the teacher whereas the letter of employment is merely signed by the principal of the school and the teacher. That is, counsel's proposition would have the signature of a principal of a school alone constitute the consent of the school board to terminate a contract where the original document was subject to much greater formality and with no suggestion in the original document that such a vehicle for consent was contemplated by the parties. That is not a tenable proposition.
The fact that union dues have been deducted by the school board likewise cannot serve to transform the grievors into statutory form teachers. Article 13.10(a) does not require the deduction of such dues and, indeed, only establishes the entitlement of the teacher to all benefits applying to members covered by the collective agreement and placement on the salary grid having regard to the teacher's qualifications and experience.
The above analysis grounds the Board's conclusion that the grievors were occasional teachers falling under Article 13.10(a) of the collective agreement and whose wage rates and benefits were established in accordance with that article. As of July 2, 1992 the applicant trade union was certified as bargaining agent for all occasional teachers employed by the Leeds and Grenville County Board of Education in its elementary schools in the Leeds and Grenville County. The grievors, for the reasons given, do not fall within the exclusion from the bargaining unit of statutory form teachers. As noted, Article 13.10 was deemed null and void by the effect of Note 3 in that article upon the acquisition of bargaining rights by the occasional teachers. Note 3, however, could not serve to extinguish the statutory freeze, nor was such a consequence asserted.
The Board's approach in assessing whether the freeze provision has been violated was articulated in Simpsons Limited, supra, and Spar Aerospace Products, supra. That jurisprudence was not disputed and need not be reiterated herein. Further, in the instant case, the parties have acknowledged in their agreed facts, as set out therein, that the grievors were not paid the same wages and benefits subsequent to the certification of the applicant union. The Board has rejected counsel for the responding party's argument that the grievors were statutory form (in this case, probationary) teachers and not occasional teachers within the bargaining unit applied for and, thus, whose terms and conditions of employment, rights~ privileges or duties were not caught by the statutory freeze. Consequently, those terms and conditions of employment, rights, privileges and duties were frozen and the responding party's alteration of those matters constitutes a contravention of the Act. Given the Board's analysis of Article 13.10 and the Board's conclusion that the teachers in question were occasional teachers, the Board need not deal with the other argument of counsel for the applicant that, regardless of their formal status, the terms of employment of the teachers in question were caught by the freeze. Further, the Board does not regard as compelling the assertion that Note 3 in Article 13.10 constitutes the prior consent of the applicant union to the changes by the responding party to the terms and conditions of employment of the grievors. The Board is satisfied that Note 3 was solely intended to provide for an orderly transition of the employment relationship of occasional teachers from that provided for in the collective agreement to that contemplated under the Labour Relations Act when and if occasional teachers were certified pursuant to that Act. The Board notes that a similar result would be effected by operation of law, apart from the collective agreement terms, if and when occasional teachers were certified pursuant to the Labour Relations Act.
For the foregoing reasons, the Board declares that section 81 of the Act has been violated. The Board directs the responding party to fully compensate those bargaining unit members for any and all losses they suffered as a result of that violation and to reinstate the terms and conditions of employment, rights, privileges and duties existing at the point the statutory freeze was imposed by operation of the Act. Those terms and conditions of employment, rights, privileges and duties are to be continued for the duration of the freeze unless altered with the consent of the applicant trade union. The quantification of those losses is remitted to the parties. However, the Board remains seized to deal with that issue should the parties be unable to agree or in the event there is any other difficulty arising out of the interpretation or implementation of this decision.