Ontario Secondary School Teachers' Federation and its District 23 v. Grand Erie District School Board, 1999 CanLII 19960

[1999] OLRB REP. JANUARY/FEBRUARY 44

2581-98-U Ontario Secondary School Teachers' Federation and its District 23, Applicant v. Grand Erie District School Board, Responding Party

Education Act - Strike - Interference with Trade Unions - Unfair Labour Practice -Teachers engaging in "work to rule" while in legal strike position - School board employer writing to union and advising that actions illegal (as contrary to Education Act) and that if teachers did not end "work to rule", employer would commence court proceedings - Board finding "work to rule" to be protected lawful strike under the Labour Relations Act - Board finding that employer's letter to union was not illegal in itself

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Maurice A. Green, Beth Wheatley, Mike Walsh, Mary-Helen Conlin, Dale Fisher, Robin Cooke, Henry Lobb and Karen Parker for the applicant; S.F Gleave, Cohn Armstrong, Lee Merritt, David Deans and John Verbakel for the responding party.

DECISION OF THE BOARD; January 18, 1999

1. This is an application under section 96 of the Labour Relations Act, 1995 alleging that the responding party (referred to as the "school board") has violated sections 70, 72, 73 and 76.

2. In a "bottom line" decision dated November 10, 1998 the Board ruled as follows:

3. On October 21, 1998 the union, which is in a legal strike position, escalated the "Work to Rule" action it had been engaging in and advised the school board that its members would not be performing some of their duties. The next day the school board sent a letter to the president of the union district advising her that the actions of the executive were illegal and that if it did not advise the teachers to perform their duties the school board would institute a court proceeding and seek damages. It subsequently did commence such a proceeding. The union alleges that the letter constitutes an attempt to interfere with its rights and those of the teachers and is an unfair labour practice.

4. If the union's actions are illegal as claimed by the school board, then its letter cannot be a violation of the Act. On the other hand, if the union and its members are engaging in legal strike activity the letter may constitute a violation. Whether or not the union's actions are protected strike activity appears to be the real issue between the parties, at least under the Labour Relations Act.

5. The Board has considered the submissions of the parties and finds that the actions of the union and the teachers which the school board sought to restrain are legal strike activity and are protected as such under the Labour Relations Act.

6. The Board may now consider whether the school board's letter violated the Act. Seeking to restrain the union's lawful strike activity is prima facie an attempt to interfere with its rights. However, in this case the letter in question was advising the union executive of the school board's view that its actions were illegal and that the school board would institute court proceedings if they did not cease. In these particular circumstances, the Board does not find that the school board's action in sending the letter constitutes a violation of the Act. Of course any further attempt to restrain the union's actions in this regard would not likely be subject to the same excuse now that the Board has determined that they are protected under the Labour Relations Act as legal strike activity.

7. This application is therefore hereby dismissed. As indicated above, written reasons for this decision will follow.

8. The Board is now providing further reasons for that decision.

9. In order to expedite the hearing, the applicant (referred to as the "union") decided to proceed with only certain of its allegations, the facts of which were not in dispute. It also conceded that the duties that the teachers stopped performing after October 22, 1998 are duties required under the Education Act and Regulations. The school board advised that it planned to submit extensive evidence on the duties of teachers. It indicated that it anticipated that it would take a number of weeks to hear this evidence. However, the Board ruled that the evidence proposed was not necessary given the applicant's concession and the narrow issue left for it to decide. The school board also made a number of preliminary objections which were dismissed by the Board. In view of the Board's ultimate decision to dismiss the application it is not necessary to provide reasons for those rulings.

The Issue

5. The first issue raised by the application is whether or not the union's work-to-rule campaign subsequent to October 22, 1998 is unlawful or is legal strike activity. Secondly, if it is legal strike activity, did the school board violate the Act by sending a letter to the union's district executive members advising them that if they did not cease their "illegal" actions the school board would bring a court action and seek damages? The school board claims that the district executive's and the employees' actions in the work-to-rule campaign are "illegal" because they are not performing duties required under the Education Act. It is the school board's position that as those duties are statutorily required, the failure to perform them is not protected strike activity.

Facts

6. The relevant facts are undisputed and are as follows. The Grand Erie District School Board was formed on January 1, 1998 pursuant to the Fewer School Boards Act, 1997. The new school board was formed by merging the Haldimand, Norfolk and Brant County boards of education. Pursuant to the Education Quality ImprovementAct, 1997 (Bill 160) (referred to as the "Education Act") the collective agreements for the three school boards remained in force while the parties engaged in collective bargaining for the new board. The parties participated in conciliation and a "no board" report was issued. The parties were in a legal strike/lockout position pursuant to the Labour Relations Act, 1995 as of July 20, 1998.

7. On or about September 1, 1998 the school board altered the terms and conditions of employment for the teachers. It changed salaries and benefits and increased teaching time. Also on or about September 1, 1998 the union advised the Director of Education that it was commencing a withdrawal of voluntary services. It also advised that if it escalated this "strike" action it would give the school board a minimum of 24 hours notice.

8. The union engaged in one day walk-outs on September 17 and October 21, 1998. In both cases more than 24 hours notice was given. On October 21st, after an unsuccessful negotiation session, the union sent a letter to the school board advising that it was escalating its work-to-rule campaign. The "Work to Rule Guidelines" which the teachers commenced to follow on October 22, 1998 state as follows:

• members are to enter the school together, 15 minutes before the timetabled school day begins

• members are to leave school within 15 minutes of end of classes (30 minutes for those teaching 4 of 4 or 7 of 8)

• members are to attend no meetings during the school day, including staff, department, heads, or curriculum meetings

• members are to provide no tutorials for students

• members are to provide a class list showing a percentage mark for each student upon request by the principal

• members are to work on marking only during the school day (preparation may be done at home)

• members are not to attend Parent Interview Nights

9. On October 22, 1998 the school board sent the union district president the letter which the union claims constitutes a violation of the Act. The letter states as follows:

Further to my letter of October 21, 1998, it has come to my attention that the Executive of District 23 O.5.5.T.F. has instructed its members to follow rules other than those required by the Board in the Duties and Expectations of Teachers. Some teachers have refused to comply with duties described in Board procedures.

Your Executive has instructed teachers not to attend staff meetings, not to provide tutorials for students, not to complete mark reports and not to attend scheduled parent interviews.

The Board requires that teachers perform the duties and meet the expectations outlined in the Board procedure. It considers the actions of the Executive to be illegal. Unless the Board receives confirmation by 4:00 p.m. on Friday, October 23, 1998 that the Executive of the District has instructed the teachers, in writing, to comply with the Board's Rules, the Board will be advised to bring a motion in Court to restrain the Executive of the Federation from imposing rules that are in violation of the Board's rules.

In the event that it becomes necessary to bring Court action, the Grand Erie District School Board will seek compensation for extra costs incurred as a result of the Federation Executive's actions.

10. The school board did proceed to file an application with the court on October 27, 1998. The union filed this application with the Board on October 29, 1998.

11. The union originally alleged that other actions of the school board also constituted violations of the Act but it dropped those allegations in order to proceed expeditiously with the matter and dispense with the need for viva voce evidence.

Relevant Statutes

12. The relevant sections of the Labour Relations Act, 1995 provide as follows:

13. (1) In this Act,

"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a comtnon understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.

5. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

6. 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.

7. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employ­ment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act

73. (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.

74. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

75. Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do an act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, the Board may so declare and it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

76. The sections of the Education Quality Improvement Act, 1997 and Regulations which the parties suggested were relevant include the following:

19.(2) Same. - In case of strike by members of a teachers' bargaining unit or a lockout of those members, the board may close one or more schools if it is the opinion that,

(a) the safety of pupils may be endangered during the strike or lockout;

(b) the school building or the equipment or supplies in the building may not be adequately protected during the strike or lockout; or

(c) the strike or lockout will substantially interfere with the operation of the school.

(3) Teachers' salary. - A teacher is not entitled to be paid his or her salary for the days on which the school in which he or she is employed is closed under subsection (2).

170. (1) Duties of boards. - Every board shall,

171. provide instruction and acconunodation. - provide instruction and adequate accommo­dation during each school year for the pupils who have a right to attend a school under the jurisdiction of the board;

172. conduct schools. - ensure that every school under its charge is conducted in accordance with this Act and the regulations;

173. appoint principal and teachers. - appoint for each school that it operates a principal and an adequate number of teachers, all of whom shall be members of the Ontario College of Teachers.

174. (1) Duties of teacher. - It is the duty of a teacher and a temporary teacher,

(a) teach. - to teach diligently and faithfully the classes or subjects assigned to the teacher by the principal;

(b) learning. - to encourage the pupils in the pursuit of learning;

(c) religion and morals. - to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, indus­try, frugality, purity, temperance and all other virtues;

(d) co-operation. - to assist in developing co-operation and co-ordination of effort among the members of the staff of the school;

(e) discipline. - to maintain, under the direction of the principal, proper order and discipline in the teacher's classroom and while on duty in the school and on the school ground;

(f) language of instruction. - in instruction and in all communications with the pupils in regard to discipline and the management of the school,

(i) to use the English language, except where it is impractical to do so by reason of the pupil not understanding English, and except in respect of instruction in a language other than English when such other language is being taught as one of the subjects in the course of study, or

(ii) to use the French language in schools or classes in which French is the language of instruction except where it is impractical to do so by reason of the pupil not understanding French, and except in respect of instruction in a language other than French when such other language is being taught as one of the subjects in the course of study;

(g) timetable. - to conduct the teacher's class in accordance with a timetable which shall be accessible to pupils and to the principal and supervisory officers;

(h) professional activity days. - to participate in professional activity days as designated by the board under the regulations;

(i) absence from school. - to notify such person as is designated by the board if the teacher is to be absent from school and the reason therefor;

U) school property. - to deliver the register, the school key and other school property in the teacher's possession to the board on demand, or when the teacher's agreement with the board has expired, or when for any reason the teacher's employment has ceased; and

(k) textbooks. - to use and permit to be used as a textbook in a class that he or she teachers [sic] in an elementary or a secondary school,

(i) in a subject area for which textbooks are approved by the Minister, only textbooks that are approved by the Minister, and

(ii) in all subject areas, only textbooks that are approved by the board.

(1.1) Sign language. - Despite clause (1 )(f), a teacher or temporary teacher may use American Sign

F. Language or in accordance with the Quebec Sign Language regulations.

(2) Refusal to give up school property. - A teacher who refuses, on demand or order of the board that operates the school concerned, to deliver to the board any school property in the teacher's possession forfeits any claim that the teacher may have against the board.

(3) Teachers, conferences. - Teachers may organize themselves for the purpose of conducting professional development conferences and seminars.

265. Duties of principal. - It is the duty of a principal of a school, in addition to the principal's duties as a teacher,

(a) discipline. - to maintain proper order and discipline in the school;

(b) co-operation. - to develop co-operation and co-ordination of effort among the members of the staff of the school;

(c) register pupils and record attendance. - to register the pupils and to ensure that the attendance of pupils for every school day is recorded either in the register supplied by the Minister in accordance with the instructions contained therein or in such other manner as is approved by the Minister;

50

(d) pupil records. - in accordance with this Act, the regulations and the guidelines issued by the Minister, to collect information for inclusion in a record in respect of each pupil enrolled in the school and to establish, maintain, retain, transfer and dispose of the record;

(e) timetable. - to prepare a timetable, to conduct the school according to such timetable and the school year calendar or calendars applicable thereto, to make the calendar or calendars and the timetable accessible to the pupils, teachers and supervisory officers and to assign classes and subjects to the teachers;

(f) examinations and reports. - to hold, subject to the approval of the appropriate supervisory officer, such examinations as the principal considers necessary for the promotion of pupils or for any other purpose and report as required by the board the progress of the pupil to his or her parent or guardian where the pupil is a minor and otherwise to the pupil;

(g) promote pupils. - subject to revision by the appropriate supervisory officer, to promote such pupils as the principal considers proper and to issue to each such pupil a statement thereof;

(h) textbooks. - to ensure that all textbooks used by pupils are those approved by the board and, in the case of subject areas for which the Minister approves textbooks, those approved by the Minister;

(i) reports. - to furnish to the Ministry and to the appropriate supervisory officer any information that it may be in the principal's power to give respecting the condition of the school premises, the discipline of the school, the progress of the pupils and any other matter affecting the interests of the school, and to prepare such reports for the board as are required by the board;

(j) care of pupils and property. - to give assiduous attention to the health and comfort of the pupils, to the cleanliness, temperature and ventilation of the school, to the care of all teaching materials and other school property, and to the condition and appearance of the school buildings and grounds;

(k) report to M.O.H. - to report promptly to the board and to the medical officer of health when the principal has reason to suspect the existence of any communicable disease in the school, and of the unsanitary condition of any part of the school building or the school grounds;

(1) persons with communicable diseases. - to refuse admission to the school of any person who the principal believes is infected with or exposed to communicable diseases requiring an order under section 22 of the Health Protection and Promotion Act until furnished with a certificate of a medical officer of health or of a legally qualified medical practitioner approved by the medical officer of health that all danger from exposure to contact with such person has passed;

(in) access to school or class. - subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal's judgment be detrimental to the physical or mental well-being of the pupils; and

(n) visitor's book. - to maintain a visitor's book in the school when so determined by the board.

277.12 (1) Education Relations Conunission. - Despite the repeal of section 59 of the School Boards and Teachers Collective Negotiations Act, the Education Relations Commission is continued for the purposes of,

(a) advising the Lieutenant Governor in Council when, in the opinion of the Commission, the continuation of a strike, lock-out or closing of a school or schools will place in jeopardy the successful completion of courses of study by the affected pupils;

(b) making determinations under clause 60(l)(f) of the School Boards and Teach­ers Collective Negotiations Act in respect of applications made but not finally determined before January 1, 1998; and

(c) compiling statistical information on the supply, distribution, professional ac­tivities and salaries of teachers.

277.12 (1) Advice re jeopardy. - The Lieutenant Governor in Council may, by order, appoint a person or entity to advise the Lieutenant Governor in council when, in the opinion of the person or entity, the continuation of a strike, lockout or closing of a school or schools will place in jeopardy the successful completion of courses of study by the affected pupils.

(2) Same. - The Lieutenant Governor in Council may give the persons or entity such directions as the Lieutenant Governor in Council considers appropriate with respect to the discharge of his, her or its duties under the order.

277.13 Conflict. - In case of conflict, this Act and regulations made under it prevail over the provisions of a collective agreement.

277.13.1 (1) Enforcement of Part X.1. - This part may be enforced as if it formed part of the Labour Relations Act, 1995 and, for that purpose, that Act shall be read as if it included this Part.

(2) Same. - Without limiting the generality of subsection (1),

(a) a designated bargaining agent shall be deemed to be a trade union for the purposes of the Labour Relations Act, 1995;

(b) sections 110 to 118 of the Labour Relations Act, 1995 apply with necessary modifications with respect to anything the Ontario Labour Relations Board does under this Part;

(c) subsections 96(4), (6) and (7) and sections 122 and 123 of the Labour Rela­tions Act, 1995 apply with necessary modifications with respect to proceedings before the Ontario Labour Relations Board and its decisions, determinations and orders;

(d) the Ontario Labour Relations Board has, in relation to any proceedings under this Part, the same powers to make rules to expedite proceedings as the Board has under subsection 110(18) of the Labour Relations Act, 1995, and the rules apply despite anything in the Statutory Powers Procedure Act and they are not regulations within the meaning of the Regulations Act.

(3) No panels. - Where the Ontario Labour Relations Board is given authority to make a decision, determination or order under this Part, it shall be made, F

(a) by the chair or, if the chair is absent or unable to act, by the alternate chair; or

(b) by a vice-chair selected by the chair in his or her sole discretion or, if the chair is absent or unable to act, selected by the alternate chair in his or her sole discretion.

(4) Labour relations officers. - The Ontario Labour Relations Board may authorize a labour relations officers [sic] to inquire into any matter that comes before it under this Part and to endeavour to settle any such matter.

(5) Interim order. - The Ontario Labour Relations Board may make interim orders with respect to a matter that is or will he the subject of a pending or intended proceeding.

(6) Timing of decisions, etc. - The Ontario Labour Relations Board shall make decisions, determi­nations and orders under this Part in an expeditious fashion.

(7) Finality. - A decision, determination or order made by the Ontario Labour Relations Board is final and binding for all purposes.

(8) Repeal. - Clause (2)(d) and subsection (3) are repealed on January 1, 2001.

277.13.2 (1) Enforcement, Labour Relations Act, 1995. - Clause 277.13.1 (2)(d) and subsections

277.13.1 (3) to (7) apply with necessary modifications with respect to the enforcement of the Labour Relations Act, 1995 by the Ontario Labour Relations Board.

(2) Repeal. - This section is repealed on January 1, 2001.

277.17 (1) Termination of arbitrations. - Proceedings before an arbitrator or arbitration board that are commenced under Part IV of the School Boards and Teachers Collective Negotiations Act before January 1, 1998 and in which a final decision has not been issued and served before that date are terminated on January 1, 1998.

(2) Termination of strikes, lock-outs. - Every strike and lock-out commenced before January 1, 1998 under the School Board and Teachers Collective Negotiations Act is terminated on January 1, 1998.

(3) Right to strike. - Beginning on January 1, 1998, no Part X. 1 teacher shall strike against a board unless the strike is authorized by the Labour Relations Act, 1995.

(4) Right to lock-out. - Beginning on January 1, 1998, no board shall lock out a Part X.l teacher unless the lock-out is authorized by the Labour Relations Act, 1995.

(5) Enforcement. - Sections 81 to 85 and 100 to 108 of the Labour Relations Act, 1995 apply with necessary modifications with respect to the enforcement of this section.

Regulations

11. (1) The principal of a school, subject to the authority of the appropriate supervisory officer, is in charge of,

(a) the instruction and the discipline of pupils in the school; and

(b) the organization and management of the school.

20. In addition to the duties assigned to the teacher under the Act and by the board, a teacher shall,

(a) be responsible for effective instruction, training and evaluation of the progress of pupils in the subjects assigned to the teacher and for the management of the class or classes, and report to the principal on the progress of pupils on request;

(b) carry out the supervisory duties and instructional program assigned to the teacher by the principal and supply such information related thereto as the principal may require;

(c) where the board has appointed teachers under section 14 or 17, co-operate fully with such teachers and with the principal in all matters related to the instruction of pupils;

(d) unless otherwise assigned by the principal, be present in the classroom or teaching area and ensure that the classroom or teaching area is ready for the reception of pupils at least fifteen minutes before the commencement of classes in the school in the morning, and, where applicable, five minutes before the commencement of classes in the school in the afternoon;

(e) assist the principal in maintaining close co-operation with the community;

(f) prepare for use in the teacher's class or classes such teaching plans and outlines as are required by the principal and the appropriate supervisory officer and submit the plans and outlines to the principal or the appropriate supervisory officer, as the case may be, on request;

(g) ensure that all reasonable safety procedures are carried out in courses and activities for which the teacher is responsible; and

(h) co-operate with the principal and other teachers to establish and maintain consistent disciplinary practices in the school.

Submissions of the Parties

14. The school board's extensive arguments included the following. It asserted that the teachers are required to perform the duties set out in a document which it created called "Duties and Expectations of Teachers". It claims that the duties in that document reflect the duties required under the Education Act and Regulations. The teachers are refusing to perform some of those duties under the escalated work-to-rule campaign. According to the school board the teachers' actions result in the principals and the school board themselves not complying with their obligations under the Education Act and Regula­tions. As the teachers are not complying with the Education Act and Regulations, which is the "law of the land" and, as a result, also put the principals and school board in non-compliance with their legal obligations, the escalated work-to-rule campaign is illegal and therefore not protected strike activity.

15. The school board submitted that section 5 of the Labour Relations Act, 1995 refers to "lawful" union activity and the definition of strike has to be read in that context. As the teachers' actions are unlawful i.e. they violate their statutory obligations, they cannot be engaging in protected strike activity. The school board asserted that this situation is analogous to workers refusing to participate in a health and safety committee mandated by statute on the basis that they are engaged in a lawful work slowdown.

16. The school board agrees that the teachers are permitted to engage in a full work stoppage as the right to strike pursuant to the Labour Relations Act, 1995 is clearly included under the Education Act section 277.17(3). However, according to the school board, the current work-to-rule campaign is not protected under the definition of strike because that definition must be read in conjunction with section 5 which refers to a union's "lawful activities". It submitted further that there are other limits on the "right to strike". For example, parties are not permitted to bargain to impasse over amendments to the recognition clause nor can they strike over an illegal demand. In essence, the school board is arguing that the teachers may engage in a full withdrawal of services but if they come to work they must perform any duties which can be considered to be part of their statutory obligations.

17. The school board argued further that the union is usurping the school board's "power" and statutory right to manage. It claims that the actions of the teachers are not related to "labour relations matters" and are not economic sanctions. It asserts further that not attending parentlteacher interviews in the evenings is a breach of trust. The teachers' actions are harming the children and they are not participants in the negotiations. It submits that this is really a dispute about the way in which education will be delivered by the school board.

18. The school board explained that it was not attempting to avoid the Board's jurisdiction in bringing the court action against the members of the executive and the union because it is making a claim in tort, specifically the tort of inducing breach of statutory duties. According to the school board, the union and the executive are committing tortious acts and tortious acts are not protected under the Labour Relations Act, 1995. The complaint should therefore be dismissed. It is the court's jurisdiction to determine the tort claim.

19. The school board denied that it committed an unfair labour practice by sending the letter to the district president. It was not an attempt to interfere with the union's lawful activities or rights under the Act or to intimidate or coerce any employees. It claimed that it was acting responsibly and putting the union on notice that if it did not discontinue actions which the school board considers to be unlawful it would take legal action. The school board did agree that its letter had the hybrid purpose of attempting to convince the union to stop its work-to-rule campaign as well as to put it on notice of the possible legal action. It noted that there was no evidence that the letter had any chilling effect.

20. The school board argued further that as the letter in question related to a pending legal proceeding it was privileged and therefore could not be the subject of an unfair labour practice complaint.

21. The school board referred to the following jurisprudence: Sussman v. Eales et. al. (1986) 25 C.P.C. (2d) 7; General Accident Assurance Co. v. Chrusz (1997) 1997 CanLII 12164 (ON CTGD), 34 O.R. (3d) 354; G.WE. Consulting Group Ltd. v. Schwartz (1990) 1990 CanLII 6831 (ON HCJ), 72 OR. (2d) 133; O.P.S.E.U. v. Ontario (1996) 47 C.P.C. (3d) 189; B.C.G.E. U. v. British Columbia (Attorney General) 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214; Slaight Communications Inc. v.Davidson 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Hills v. Canada (P.G.) 1988 CanLII 67 (SCC), [1988] 1 R.C.S. 513; Fortinos Supermarket Limited, [1993] OLRB Rep. Oct. 974; Eaton v. Brant Co. Bd. of Ed. 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; Meade v.

London Borough of Haringey [1979] 2 All ER 1019 (CA); Canadian Pacific Limited v. Brotherhood of Maintenance of Way Employees (1996), 96 CLLC 141, 344 (S.C.C.); St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at paras. 41, 54, 57 and 67; Re Communications Union Canada and Bell Canada (1979), 1979 CanLII 1739 (ON HCJ), 23 O.R. (2d) 701 (Div. Ct.); Re Nelson Quarry Company and United Steelworkers of America [1995] OLRB Rep. June 825; Queen's University at Kingston v. C.U.P.E., Local 229 (1995), 95 C.C.L.C. 210-015 (C.A.); Queen's University at Kingston v. C.U.P.E., Local 229 94 C.L.L.C. 14,030; Re Telegram Publishing Co. Ltd. and Zwelling (1976), 1975 CanLII 580 (ON CA), 11 O.R. (2d) 740 (C.A.); Re The Board of Education for the City of Toronto v. OSSTF, District 15 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487; Posluns v. Toronto Stock Exchange (1964), 1964 CanLII 199 (ON HCJ), 46 D.L.R. (2d) 210 affirmed (1966), 1965 CanLII 32 (ON CA), 53 D.L.R. (2d) 193 (C.A.), affirmed (1968), 1968 CanLII 6 (SCC), 67 D.L.R. (2d) 165 (S.C.C.); Marshall v. McKerron and the Waterloo County Board of Education O.C.J. 896/96, released December 19, 1996, Mr. Justice Sills (unreported); R. v. Alan Marshall, an unreported decision of His Worship Justice of the Peace F. MacPherson, Ontario Court (Provincial Division), April 24, 1997; Law Debenture Trust Corp. plc v. Ural Caspian Oil Corp. Ltd. et al. [1993] 2 All E.R. 355 (Ch. Div.); Associated British Ports v. Transport and General Workers' Union [1989] 3 All ER 796 (C.A.); Associated British Ports v. Transport and General Workers' Union [1989] 3 All ER 822 (House of Lords); O.P.S.E. U. v. Ontario (Attorney General) (1996), 47 C.P.C. (3d) 189; Metroland Printing,[1994] OLRB Rep. June 738; The Adams Mine, Cliffs of Canada Ltd., Manager, [1982] OLRB Rep. Dec. 1767; A.A.S. Telecommunications, [1976] OLRB Rep. Dec. 751; International Wallcoverings, [1983] OLRB Rep. Aug. 1316; The St. Catharines General Hospital, [1982] OLRB Rep. Mar. 441; Woodall Construction Company Limited, [1979] OLRB Rep. June 597; Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219; Sobeys

Inc. (Unreported, October 7, 1996, OLRB file #2910-95-U); Davies, Paul, and Freedland, Mark, Kahn-Freund's Labour and the Law, (London, Stevens & Sons, 1983).

22. The applicant submitted that the school board was really arguing that the union is conducting an illegal strike but that it would not come to the Board for such a declaration. In any case, the union argues, if it is engaged in a legal strike and the employees engage in unlawful activity, that does not make the strike illegal although it may mean that the employees may be subject to discipline. However it denied that its work-to-rule campaign was unlawful or that the teachers were doing anything unlawful in following it. It argued that the campaign was consistent with work-to-rule campaigns in which it has engaged many times in the past and which have been considered protected strike activity.

23. The union noted that the definition of the right to strike in the Labour Relations Act, 1995 specifically includes "slow downs and other concerted activity" and it argues that the the work-to-rule campaign falls within that category. The definition applies to teacher strikes as the Labour Relations Act, 1995 is specifically referred to in section 277.17(3) of the Education Act. It denied that the "duties" outlined in the Education Act and Regulations in any way limit that right to strike and make activity which would otherwise be lawful, unlawful. It argued that the duties in question are contractual terms and conditions of employment as well as statutory requirements. If the legislature had wanted to limit the teachers' right to strike in the way asserted by the school board it would not have incorporated the Labour Relations Act, 1995 strike provisions.

24. The union pointed out that the Education Act also contains section 19(2) which authorizes the school board to close a school if a strike by teachers makes it dangerous for the students or the facilities or if it interferes with its operation. It argued that this demonstrates that the legislature contemplated the union engaging in something less than a full withdrawal of services as strike activity. If a partial withdrawal of services was not contemplated, the power to close the school would not be needed. It also argued that since the school board has failed to close the schools it cannot really believe the situation is hazardous at present. It submitted that the legislature could have declared teachers to be an essential service when it amended the Education Act and did not do so. On the contrary, it incorporated the Labour Relations Act, 1995 by providing that a strike was legal if it complied with the provisions of that Act. There can be no implied restriction on the right to strike given that amendment. It also points out that the Education Act continues to include the authority of the Education Relations Commission to make a 'jeopardy advisement" to the Lieutenant Governor in Council during a strike if the students are in danger of not being able to complete their course of studies. Furthermore, the union notes that the court has refused to issue an injunction against an illegal withdrawal of services because it did not find that there was irreparable harm when the strike had only commenced two days previously. According to the union the Attorney General never argued in that case that the teachers were violating the Education Act because they were not performing their prescribed duties in that case. (See The Attorney General for Ontario and Ontario Teachers' Federation et al., (unreported) November 3, 1997 Ontario Court (General Division) (MacPherson J.)).

25. The union argues that as its work-to-rule campaign is protected strike activity, the school board's letter of October 22, 1998 attempting to stop it was unlawful interference in that lawful activity and therefore a violation of the Act. It asserts that the school board's action impacts on the union's ability to conduct negotiations.

26. The union referred to the following authorities: Graham Cable TV/FM (1985), 62 di 136; The Corporation of the City of Brampton (Brampton Transit), [1981] OLRB Rep. Jan. 1; Beaver Shirt and Sportswear, [1964] OLRB Rep. July 187; McDonnell Douglas Canada Ltd., [1985] OLRB Rep. Dec. 1750; Domtar Packaging Limited, [1974] OLRB Rep. Dec. 899; Mobil Paint Company, [1974] OLRB Rep. Sept. 650; Domglas Ltd., [1976] OLRB Rep. Oct. 569; York County Board of Education,

[1980] OLRB Rep. July 1154; Chinook Chemicals Company, [1989] OLRB Rep. Oct.

1021; Interna­tional Wallcoverings, [1983] OLRB Rep. Aug. 1316; Pacific Western Airlines Ltd. (1986), 12 CLRBR (NS) 315; Sack, Mitchell and Price, Ontario Labour Relations Board Law and Practice (Butterworths, 1997); Shilton E.J., Education Labour and Employment Law in Ontario, (Canada Law Book Inc., 1998).

Decision

27. The Board held in its decision of November 10, 1998 that the union's work-to-rule campaign was protected strike activity. The teachers are acting in combination or concert to "limit output" and therefore fall within the definition of strike. The campaign is occurring within the statutorily mandated time frame so it is legal. The Board has found such campaigns conducted by teachers' unions in the past to be protected strike activity (see York County Board of Education, sup ra). The fact that the duties the teachers are not performing are part of their statutory employment duties does not remove them from the spectrum of work activities which teachers can refuse to perform during a strike. If they were so removed, a total cessation of work would also not be possible. As the school board concedes however, the Education Act contemplates that teachers have the right to strike and therefore a total cessation of all work is not unlawful. If the right to strike were to be taken away, or limited, it would be part of a clear legislative decision manifest in the statute. Limitations on the right to strike cannot be inferred from the fact that the Education Act includes some duties of teachers, principals and school boards. Although the school board urges the result that the union has to choose between a total strike or no strike at all, that stark choice is not mandated by the statutory scheme. Clearly a concerted refusal to perform some of the occupational duties prescribed by contract or statute cannot be unlawful when a concerted refusal to perform all of those same duties is conceded to be lawful.

28. Furthermore, the statutory "duties" relied upon by the school board are, for the most part' general in nature and could be interpreted as applying to almost any work performed by teachers. Such an interpretation would have the effect of erasing the right to strike which has been specifically included in the Education Act. The school board argued strenuously that those duties which might not be specifically attributed to teachers in the Education Act could be found under the principals' and school boards' obligations to "manage". It claimed that the union's actions affected the principals' and the school board's ability to manage the schools. But that cannot make otherwise lawful strike activity, unlawful. All strikes impinge on the employer's ability to manage its operation. Strikes, including slowdowns and rotating work stoppages, put pressure on employers. That is the point of them. However, so long as they are carried out at the time prescribed by statute this concerted refusal of teachers to perform some, or all, of their duties is not contrary to the Education Act or the Labour Relations Act, 1995.

29. The school board repeatedly referred to the effect the teachers' actions would have on the students and parents. However, strikes are intended to put pressure on employers and usually that necessitates affecting persons served by those employers. Third parties who are not participants to the negotiations are almost always adversely affected. School board strikes may be some of the most painful because most of those other "parties" are children. As in every strike or lock-out, both sides are attempting to put as much pressure on to the other side as possible. The union achieves this by limiting "output". In a public school board strike the teachers have little ability to inflict economic pressure as there is no economic "output". The pressure asserted by the teachers is political and it is inflicted through the students and their parents because the "output" is education. This reality is not new and if there had been a legislative will that it should not occur the Education Act amendments could have added teachers to the categories of public sector workers who are designated as essential services. But the legislature did not remove the right to strike. It has maintained the statutory scheme in which the Education Relations Commission can advise the government if it believes a school board strike is in

danger of putting the children's education in jeopardy and the government may act accordingly if it chooses. That is the balance that currently exists in the legislation. The Education Act does not contain an implied limit on the definition of strike that would result in teachers having to engage in a full work stoppage in order to exercise that right.

30. Work-to-rule campaigns are common in collective bargaining in the education sector. They enable the teachers to assert the pressure contemplated in our scheme of collective bargaining on the school board without endangering the students' education year. They also presumably result in the teachers being paid at least part of their salaries. The school board can always make wage reductions and change working conditions as this school board has done or it can lock the teachers out.

31. The school board argued that including the work-to-rule campaign as protected strike activity is analogous to finding that employees in a legal strike position can refuse to participate in a health and safety committee, which is mandated by statute, or to employees of an automobile manufac­turer refusing to install safety devices on cars. It is not evident to the Board why those activities would not be legal strike activity if they were undertaken by employees in concert within the statutory time frame. In any case, the Board is prepared to say that these circumstances are not analogous to industrial sabotage which is clearly unlawful and not protected strike activity. The distinction may be understood as refusing to perform assigned work which is clearly contemplated by the definition of strike and is conceptually consistent with that definition versus taking actions which are not part of one's work, are not contemplated by the statute, and which are not conceptually consistent with it. Furthermore, if one teacher on her or his own decided not to perform her or his duties even during the statutory time frame it would not be a strike and she or he would be subject to discipline. But when the employees act in concert during the statutorily mandated period to back up their demands in negotiations, that is strike activity and is protected. The Board must make such determinations from time to time and when it does, it makes them on the basis of its labour relations expertise. In this case the teachers acting in combination, are refusing to perform some of their work. That is quintessential strike activity which is legal providing that it takes place within the statutory time frame.

32. However, the Board did not find the school board's effort to stop the work-to-rule campaign by sending the October 22, 1998 letter to be a violation of the Act. That letter was conveying the school board's view that the union's actions were illegal and it was contemplating court action. It is often the case that parties accuse each other of engaging in unlawful strikes or lock outs. Such an accusation is not a violation of the Act in itself whether or not the person making it is correct. Parties are entitled to have a view on the legality of each other's actions (even if those theories are somewhat unlikely) and to pursue them in this, or other, forums. It is acting responsibly for one party considering legal action to inform the other that it is considering such action in the hopes of resolving the matter. Such a communication does not manifest the intent to interfere with lawful union activities. Even if section 70 does not require a finding of anti-union animus as claimed by the union, the possible effect of interfering with the union must be balanced against the employer's right to inform the union that it perceives its actions to be unlawful. The employer has not imposed discipline on the employees for engaging in legal strike activity and this situation is therefore distinguishable from those cases.

33. For all of the above reasons, the Board dismissed the application.