2810-99-U Claude Émond, Applicant v. L’Association des enseignantes et des enseignants franco-ontariens (AEFO), Responding Party.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Claude Émond for the applicant; Pascale Sonia Roy and Raymond Vaillancourt for the responding party; Yvan O’Connor for Conseil scolaire de district catholique centre-sud.
DECISION OF THE BOARD; September 27, 2000
The applicant, Claude Émond complains that the responding party (“AEFO”) has violated section 74 in relation to its representation of him.
M. Émond was scheduled to return to his duties as a principal with (what was then the) Simcoe County Roman Catholic Separate School Board (hereinafter referred to as the “employer”) for the 1996-1997 school year.
Prior to his leave he had been posted to a school within what the collective agreement defined as the northern zone. The employer advised him that his assignment for the upcoming 1996-1997 school year would be to a school in the southern zone.
On May 14, 1996 a grievance was filed challenging the propriety of that assignment.
The applicant, while the grievance was pending, took up his position at the southern zone school. In March of 1997, however, for reasons of health he ceased to actively perform the duties of the position of principal. Indeed, while it may not have been the evident result in March of 1997, it appears that he has neither actively worked nor been able to actively work for the employer (whether in the capacity of principal or teacher) since that time.
In any event, by the time the 1996-1997 school year ended, the grievance was still pending. On or about April 22, 1997, the employer advised the applicant that, for the coming 1997-1998 school year he would be transferred to a principal’s position in another school within the southern zone.
An arbitration hearing commenced on June 3, 1997. On the following day the applicant filed a further grievance contesting his assignment for the 1997-1998 school year. By decision dated June 30, 1997, the first grievance was allowed and the employer was found to have violated the collective agreement by assigning the grievor to a school within the southern zone for the 1996-1997 school year.
Unfortunately, while that grievance was filed in anticipation of the transfer for the 1996-1997 school year, by the time the award issued allowing the grievance, the school year had already ended.
AEFO and the employer subsequently entered into negotiations and came to an agreement with respect to the quantum of damages suffered by the applicant as a result of the employer’s violation. An amount in excess of $4,000.00 was fixed, and paid to and accepted by the grievor.
Of course, in the interim the employer had again assigned the applicant to work in a school in the southern zone – precisely the result which the applicant had sought to avoid in the previous grievance.
It is clear that there was some hesitation and deliberation about how to handle the then current state of affairs.
The option apparently favoured by the applicant was for AEFO to seek to return to the arbitrator to reopen the first grievance and to seek to have the arbitrator rule that the second reassignment was equally contrary to the collective agreement.
AEFO declined to pursue that option. That, the applicant asserts, was a violation of its duty to fairly represent him.
AEFO did, at one point, propose to the employer that the second grievance be referred to the same arbitrator on an expedited basis. The employer declined to accept that suggestion.
A step four meeting in the second grievance was scheduled for September 3, 1997. However, sometime around that date, AEFO and the employer agreed to defer any further consideration of the second grievance. Among the reasons which may have prompted that agreement were the applicant’s own request, in writing, dated September 16, 1997 to AEFO, asking that his grievance and any discussion of his return to work be held in abeyance.
In March of 1998 M. Émond after conferring with the union, opted, in the face of the then recent legislative changes excluding principals from collective bargaining, to resign his position as principal and to remain a bargaining unit employee, i.e. a teacher. Of course and as already indicated, his health has prevented him from any active return to teaching.
In or about July 1998, the applicant again wrote to counsel for the union raising matters relating to his grievance(s).
In September, 1998 the union wrote to the applicant advising that, in its view, the matter was closed. As far as the first grievance was concerned, damages had been fixed and paid. As far as the second grievance, the applicant’s change of status from principal to teacher had materially altered his ability to claim the benefit of collective agreement provisions which had been restricted to assignments of principals
Further correspondence followed which is unnecessary to detail. The applicant continued to inquire into the matter; the union continued to assert that it viewed the matter as closed. In December of 1999 the instant application was filed.
There are some further relevant facts related to the collective bargaining relationship between the union and the school board which I will outline as I review the reasons for my ultimate conclusion to dismiss this application.
The applicant impugns the union’s conduct in representing him in two principal respects. First, as indicated, he is of the view that the second impugned assignment to the southern zone (i.e. for the 1997-1998 school year) ought to have been challenged by reconvening the Board of Arbitration which had found a similar reassignment in the previous year to have been a violation of the collective agreement or, alternatively by taking steps to enforce the decision of that Board through the courts.
The union, in my view, entirely correctly declined to follow this course of conduct. The union and employer seemed to be of the view that the arbitrator was functus and there were no issues left to enforce.
The applicant expresses the misguided view that simply because the arbitrator had, in relation to a specific set of facts at a particular time under specific provisions of a specific collective agreement found a transfer to be improper, that the applicant was thereby forever immunized from any future transfer.
The union’s decision to neither attempt to reconvene the functus Board nor to seek to enforce its decision in relation to fresh events was eminently reasonable.
That conclusion is particularly apt where there had been a second fresh grievance filed challenging the most recent transfer.
The applicant claims that the union’s handling of his second grievance was also problematic. He asserts that the union delayed and effectively determined not to pursue the matter.
The union agrees that, at least since September 1998 it has clearly and consistently taken the position that the matter is closed.
There are at least three significant reasons why the union’s decision to not pursue the grievance was reasonable and, in all likelihood, entirely correct.
First, there is considerable doubt as to whether the applicant enjoyed the same collective agreement rights at the time of the second grievance was filed. For a new collective agreement was in place at that time. And although that new agreement had not yet been concluded at the time the events giving rise to the grievance transpired, its terms were made retroactive. The new provisions eliminated the concept of zones for purposes of assignment of principals which had provided the grounding for the success of the earlier grievance.
Only the surface of the potential legal issues is identified in the above recitation. Suffice it to say that while a legal argument might be advanced for the continuing application of the old collective agreement to events which took place on April 22, 1997, the contrary conclusion could not be considered unreasonable.
There are more significant reasons, however, to conclude that the union was justified in not advancing the matter.
In September 1997, the applicant had specifically requested the matter be deferred. In October of 1997, the union received a medical report indicating that the applicant was unable to return to work on either a full-time or part-time basis for the remainder of the school year due to ongoing illness.
In April, 1998 the applicant (like many principals across the province) opted to return to the teaching ranks and to remain in the bargaining unit to which he had previously belonged.
Thus, by the time the applicant raised the issue again in July of 1998, it was clear that he did not and could not have worked as a teacher or principal for the 1997-1998 school year. It was also clear at that point that he had elected to no longer retain his principalship.
In these circumstances, absolutely no labour relations purpose was identified to me which would be or would have been served by advancing the second grievance.
Put most directly, the applicant was unable to provide a response when I asked him why it is or was important to determine whether he ought to have been assigned to a northern or southern zone school when it is clear that he was incapable of working in either case. Add to that the fact that he is no longer a principal and the collective agreement no longer provides the right claimed and there is simply no legitimate reason to advance the issue.
Finally, and perhaps most conclusively there is a further reason why this application must be dismissed. However, since this issue was not raised or addressed by any of the parties, I will mention it only briefly.
As discussed in the decision of this Board in The Ontario English Catholic Teachers’ Association (Board File No. 1344-98-U, unreported, March 18, 1999), prior to January 1, 1998, teachers had no statutory right to bring a complaint alleging violation of section 74 of the Act. Since virtually all of the events giving rise to this complaint predate January 1, 1998, it is not clear to me that the Board has jurisdiction to even entertain this complaint.
However, in view of all the above and even assuming the Board does possess such jurisdiction, I am satisfied that this is an appropriate case to exercise the Board’s discretion to not inquire into the matter any further.
This application is dismissed.
“Bram Herlich”
for the Board