Ontario Secondary School Teachers' Federation, District 12 v. The Ontario Secondary School Teachers' Federation
[1998] OLRB REP. NOVEMBER/DECEMBER 1033
2920-98-U; 2921-98-M Ontario Secondary School Teachers' Federation, District 12, Toronto Occasional Teachers' Bargaining Unit on its own behalf and on behalf of its members; and Barry Weisleder, Victor Ford, Maureen Malmud, Lorraine Wright, Bhagwan Khosla, Wilfred NaVarrette on their own behalf and on behalf of all of the members of the Ontario Secondary Teachers' Federation, District 12, Toronto Occasional Teachers' Bargaining Unit, Applicants v. The Ontario Secondary School Teachers' Federation and Toronto District School Board, Responding Parties
BEFORE: Mary Ellen Cummings, Vice-Chair.
APPEARANCES: Bernard Fishbein and Barry Weisleder for the applicants; Maurice A. Green, Jim Forster, Joan Farrell and Paul Rook for the OSSTF; Brenda Bowlby and Lynda Groves for the TDSB.
DECISION OF THE BOARD; December 9, 1998
This is an application pursuant to section 277.12.5 of the Education Quality Improvement Act, 1997. That provision permits the Board to make interim orders with respect to "...a matter that is or will be subject to a pending or intended proceeding." In this case, the pending proceeding is a complaint made pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging that one or both of the responding parties have breached section 70, 73 and 74 of the Act.
At the outset of the proceedings, counsel for the applicant submitted that when the Board has dealt with applications for interim relief in the past, it has applied a two part test, best summed up in Ombudsman Ontario, [1994] OLRB Rep. July 885 at paragraph 10:
First, assuming the applicant's assertions to be true, is there an arguable breach of the Labour Relations Act (or presumably any other legislation with respect to which the Board plays an adjudicative role) for which there is a remedy which the Board is arguably empowered to give? Second, if so, does the balance of labour relations harm favour the granting of interim relief?
Counsel for the applicant also indicated that since the responding parties had estimated that the section 96 application would take numerous days to complete, in the interests of good use of resources, his client would prefer to know sooner rather than later if the Board was of the view the section 96 complaint, as pleaded, could be sustained. The Board indicated that it also considered it practical to determine whether the applicant had pleaded an arguable or prima facie breach of the Act in its section 96 complaint. With the concurrence of the other parties, the Board heard the parties submissions only on whether the applicant's section 96 allegations, if proven, would make out a breach of the Act.
After hearing and considering the parties' submissions, the Board issued the following "bottom line" decision:
I have concluded that both the request for interim relief and the section 96 complaint should be dismissed. I find that the applicant has not made out a prima facie or arguable case that either of the responding parties has breached the Act. More particularly, I find that the obligations contained in section 74 do not extend to a trade union's conduct in its negotiations on behalf of another bargaining unit. Finally, I am not satisfied that even if the applicant's allegations were made out, they would establish a breach of either section 70 or section 73.
These are my reasons for that decision.
Although the parties spent some time disputing each other's factual assertions, this decision is necessarily based on the assumption that all of the allegations made by the applicant are proved and provable, so there is no point in setting out the areas of disagreement about the facts.
The applicant is a bargaining unit of occasional teachers working in English language secondary schools ("the Occasional Teachers"). The responding party, the Toronto District School Board ("the School Board") is the successor board of education in the new City of Toronto to six former boards in municipalities that existed prior to municipal amalgamation. Occasional teachers were represented by different bargaining agents prior to the existence of the Education Quality Improvement Act, 1997. On proclamation, bargaining rights held by unions representing occasional teachers were terminated, and the bargaining rights were granted to the respective branch affiliates in the Ontario Teachers' Federation, with the result that the bargaining rights for occasional teachers are held by the bargaining agent that represents full-time teachers. In this case, then, the Ontario Secondary School Teachers' Federation (the OSSTF), which represents full-time secondary teachers at the School Board, was granted the bargaining rights for the occasional teachers. The Education Quality Improvement Act further stipulates that the bargaining rights cannot be terminated, so essentially the members of the occasional teachers' bargaining unit have no means to replace their bargaining agent.
To be clear then, the OSSTF represents each of the occasional teachers and the full-time teachers, but in separate bargaining units.
In October 1998, the school board and the full-time teachers entered into a Memorandum of Settlement for a new collective agreement. Among its provisions was an agreement that the time-table assignment of each full-time teacher would include on-call requirements, and most significantly "On average across the Board, each school shall provide from on-call assignments, coverage for the first four teacher absences each day". The applicant alleges that in the past, Full- time Teachers had provided coverage of only one period per day, and predecessor collective agreements provided that school boards would hire occasional teachers "as the need arises". On a practical level, the Occasional Teachers assert that the provisions in the new collective agreement will eliminate approximately 90% of the work opportunities for the Occasional Teachers and virtually obliterate the work of its bargaining unit.
While the responding parties dispute the accuracy of the applicant's view of history, and the applicant's assessment of the impact of the new full-time collective agreement, again, for the purposes of this exercise, all the applicant's facts are considered provable and proved.
The applicant alleged that the full-time teachers breached its duty of fair representation owed to the occasional teachers in agreeing to a provision that effectively obliterated the work of the occasional teachers. Section 74 provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Counsel argued that it was possible to read section 74 in such a manner that a trade union's duties with respect to employees in the unit continues, so long as it was representing the unit. On that reading of section 74, the obligation to represent fairly is not restricted to the occasions when the bargaining agent is working on behalf of the unit, but is a constant obligation that follows the bargaining agent even when it is working on behalf of another unit. In this case, then, counsel for the applicant argued, the OSSTF owed a duty of fair representation to the occasional teachers whilst it was bargaining with the School Board on behalf of the full-time teachers. Counsel for the applicant conceded that this construction of section 74 was particularly appropriate in this kind of situation where the same bargaining agent is bargaining on behalf of two units with the same employer. He submitted that these circumstances, coupled with the reality that the occasional teachers are not free to elect their bargaining agent, should convince the Board that the construction urged is at least possible.
The argument is certainly novel, but ultimately, not convincing. While I agree that the duty to represent is a continuing one, section 74 limits its operation to those instances in which the trade union is representing the employees. Put another way, the more persuasive reading of section 74 requires a trade union to turn its mind to the interests of the bargaining unit when, and only when, it is called upon to represent it. Not only is the applicant's reading not persuasive on a simple read, when the practical consequences are considered, that reading becomes less attractive and sustainable. Trade unions regularly represent bargaining units with diverse and conflicting interests. In fact, the same trade union may represent employees whose employers are competitors. It is hard to conceive of a way that trade unions could even pretend to meet a duty of fair representation obligation that required them to consider the interests of all the bargaining units they represented whenever they negotiated, absent some form of joint bargaining or standard agreements in an industry. It is difficult to imagine that the Board would choose a reading of the duty of fair representation that would have the effect of requiring trade unions to drastically alter how they bargain.
Instead, I prefer the traditional reading; a trade union is required to consider the interests of a bargaining unit only when it is acting for it. In this case then, the OSSTF had no duty of fair representation to the Occasional Teachers when it was negotiating with the School Board on behalf of the Full-time Teachers.
Turning now to the other allegations, I will set out sections 70 and 73.
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
(1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
(2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
With respect to section 70, the applicant argued that the School Board had interfered with the representation of the Occasional Teachers by agreeing to a collective agreement whose terms obliterated the work opportunities of the Occasional Teachers. Counsel submitted that the Occasional Teachers have been put in a near impossible position with respect to the negotiation of their own collective agreement, because, in effect their work has been taken away. In simple terms, counsel for the applicant argued that whenever an employer agrees to terms with one bargaining unit that is a better deal than the terms it reaches with another bargaining unit, the employer is potentially in breach of section 70. In my view, given that it has long been recognized that differences in bargaining strength legitimately result in different collective bargaining results, it is difficult to accept such a proposition.
But, in any event, section 70 typically addresses situations in which employers inappropriately interfere in employees' right to select and support the bargaining agent of their choice. In this case, the allegation is that in its negotiations with the Full-time Teachers, the School Board has interfered in the "right" of the Occasional Teachers to bargain usefully about their work, because that work has been virtually eliminated. I do not believe that section 70 can address such an issue. What the School Board and Full-time Teachers have done (allegedly) seriously affects the viability of the Occasional Teachers, but it does not constitute interference by the School Board in the Occasional Teachers' bargaining unit.
Finally, turning to section 73, again, I conclude that the conduct complained of is not what section 73 is intended to address. Section 73 addresses situations in which an employer and an opportunistic trade union try to circumvent existing bargaining rights by entering into a rival collective agreement. Counsel for the applicant argued that the Full-time Teachers and School Board had breached section 73 because their own collective agreement was "... designed or intended to be binding on..." the Occasional Teachers. That reading stretches section 73 beyond recognition.
For the reasons set out above, the Board dismissed both the application for interim relief and the underlying section 96 complaint.