[1998] OLRB REP. NOVEMBER/DECEMBER 995
3956-98-U Niagara Catholic District School Board, Applicant v. Ontario English Catholic Teachers' Association; Greg Pollock; Mary Pos, Responding Parties
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Steven F Wilson and Stephen Hudson for the applicant; Kate Hughes and Greg Pollock for the responding parties.
DECISION OF THE BOARD; December 21, 1998
This is an application under section 100 of the Labour Relations Act, 1995 alleging that the responding parties (referred to collectively as the "union") have "called or authorized or threatened to call or authorize" an unlawful strike or, that as a probable consequence of their acts a person or persons will engage in an unlawful strike.
The relevant facts are not in dispute. Prior to September 8, 1998 the applicant (referred to as the "school board") was engaged in collective bargaining with the union for both the secondary and the elementary teachers who are in different bargaining units. On September 3, 1998 the union issued what is called a "pink list" or "pink letter" advising teachers in the union not to take jobs with various school boards who have not reached collective agreements. The memorandum indicates that any teacher who accepts such a position will be subject to discipline as set out in the union's by-laws and procedures. The applicant was on the list which applies to both the secondary and the elementary bargaining unit. The day before the issuance of the pink list, the elementary teachers ratified a collective agreement. On September 8, 1998 the school board also ratified the collective agreement with the elementary teachers and it came into effect. The secondary teachers are still negotiating a collective agreement.
In November, 1998 the school board needed to hire both elementary and secondary teachers. It held interviews and oral offers were made to, and accepted by, seven individuals for positions in the elementary bargaining unit. The school board was then advised by the presidents of the secondary teachers' bargaining unit that the pink list was in effect for both the elementary and the secondary panels. However, the president of the elementary unit was apparently under the impression that the pink list was not in effect with respect to her local. She was advised in a letter dated December 2, 1998 from the Deputy General Secretary of the union that it was in effect. She then provided a copy of that letter to the school board and it filed this application. The Deputy Secretary General also states in the letter that he will advise the General Secretary that the District Local had been under the misunderstanding that the pink list was not in effect if any complaint is brought against the teachers who accepted elementary teaching positions with the school board before November 27, 1998. The union's position at the hearing of this matter was that the Deputy General Secretary would recommend that no sanctions be brought against any teacher who had accepted a position on the elementary panel prior to November 27.
The school board advised that it still has a few positions to fill and may have more vacancies of which it is not yet aware. There is no evidence that it has been unable to attract any teachers at this point nor have any teachers indicated that they will not be taking positions they accepted in November. There is also no evidence that anyone has complained about the teachers accepting elementary positions.
Submissions of the Parties
The school board argues that the union has threatened an unlawful strike and that it may cause an unlawful strike in the elementary bargaining unit by keeping that unit on the pink list. It is concerned that the teachers who accepted the elementary positions will now refuse them; that it will not be able to fill future positions and that there is no guarantee that everyone who might have been interested applied, or will apply, for positions in view of the outstanding boycott.
The school board argues that the teachers who have accepted positions, and any teacher who might be interested in a future position, is an "employee" for the purposes of the strike definition in section 1(1) of the Act. The school board notes that the strike definition refers only to "employees" not to "employees of the employer" which is the language found in other sections. Therefore, according to the school board, the word "employees" is expansive and can apply to future employees or employees of another school board.
The school board is asking that the Board issue a cease and desist order against the union and also that the union be directed to provide a Board notice to any teacher in the province "affected" by the pink list, i.e. any teacher who may have seen it.
The school board relies upon the following decisions: Maritime Employers 'Association et. al. (1978) 78 CLLC 209; The Toronto Western Hospital, [1972] OLRB Rep. July 724; Board of Education for the Borough of Scarborough, [1983] OLRB Rep. Nov. 1889; The Halton Board of Education (January 31, 1978, decision of Arbitrator Swan, unreported).
The union denies that it has threatened or authorized an unlawful strike as its pink letter is directed toward individuals who are not yet employees of the school board. As the definition of strike in section 1(1) refers to "employees" it does not apply to this situation and its actions are not unlawful. It relies upon the decisions of this Board in The Board of Education for the City of Windsor, [1978] OLRB Rep. July 699 and The Ottawa Board of Education, [1983] OLRB Rep. May 694.
The union also argues that its pink letter is lawful as it is in compliance with the "Regulation Made Under the Teaching Profession Act" section 18(1)(c) which states that "a member shall ... refuse to accept employment with a board of trustees whose relations with the Federation are unsatisfactory". It also argues that it has a "good reason" to apply the pink letter to the elementary panel because the collective agreement permits the school board to transfer the elementary teachers into any location of the school board, including to the secondary panel.
The school board expressed surprise to hear that the union is of the view that it can transfer teachers between bargaining units and denies that that has been the expectation in the past.
Decision
It may seem somewhat inconsistent with the scheme of the Labour Relations Act, 1995 that a bargaining unit which has reached a collective agreement and is therefore not in a legal strike position can lawfully be used to put pressure on a school board in its negotiations with a different bargaining unit. Nevertheless, the definition of strike in the Act specifically refers to "employees" and the Board cannot find that individuals who have not yet even applied for positions are "employees". The Maritime Employers 'Association decision, supra, is easily distinguished on the facts. The court stressed in that decision that the individuals were employees because the collective agreement contained a scheme which required the union to provide employees to the members of the association and outlined the terms and conditions for those arrangements. There is no such agreement or any other kind of hiring hall arrangement in this case. In the absence of such facts, the Board cannot find that a hiring boycott directed towards individuals who may apply for positions in the future is threatening or authorizing an unlawful strike because a concerted refusal by such persons to apply for a job would not be an unlawful strike. The word "employees" in the definition of strike cannot be stretched to encompass possible future employees or employees of a completely different school board.
This determination is consistent with the Board's decisions in Board of Education for the City of Windsor, supra, and the Ottawa Board of Education, sup ra. The Board agrees with the reasoning in those decisions and particularly with the Ottawa Board decision in which the Board considered the applicability of the Labour Relations Act. The school board suggests that those decisions are distinguishable, because the positions the hiring boycotts were directed at in those decisions were not in the bargaining unit. However, the Board finds that the facts of this case are even less persuasive because the potentially affected individuals are not employed by the school board at all.
The school board's argument with respect to the teachers who have already accepted positions might be more persuasive if there was a real danger of them now refusing those positions. If that were the case the situation might be closer to the facts in the Board of Education for the City of Scarborough, supra. In that case employees had been hired as principals of the summer school and had already commenced some of their duties even though they were not yet being paid. The employees then refused to continue their summer school positions after the school board was pink listed. However, there does not appear to be any real danger at this time that any teachers who have accepted positions in the elementary bargaining unit will now refuse them. The applicants accepted the jobs in spite of the pink list in the first place. If there was some confusion as to whether the pink list applied to the elementary unit, there is no evidence that anyone has changed her or his mind as a result of the situation being clarified. Such a person would not be disciplined in any case unless a complaint was made and then the union has said that it will take into account that there was a misunderstanding as to whether the pink list was in effect against the elementary panel and will recommend that no sanctions be imposed.
For the above reasons, the Board does not find that the responding parties have threatened, authorized or caused an unlawful strike and this application is hereby dismissed.