Perry Zolis v. Ontario Secondary School Teachers’ Federation District 12 and Ontario Secondary School Teachers’ Federation
File No.: 3230-99-U Date: October 18, 2000
Applicant: Perry Zolis Responding Parties: Ontario Secondary School Teachers’ Federation District 12 and Ontario Secondary School Teachers’ Federation Intervenor: Toronto District School Board
Before: Patrick Kelly, Vice-Chair.
Appearances: Perry Zolis appearing on his own behalf; B. Chercover, W. White, J. Jansen and B. Reith appearing on behalf of the responding parties; Jeff Mitchell and John Donofrio appearing on behalf of the intervenor.
DECISION OF THE BOARD
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) alleging a violation of section 74 of the Act.
Section 74 reads 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.
By decision dated July 27, 2000, the Board (differently constituted) determined that the applicant had failed to make out a prima facie case of a violation of section 74 with respect to all but two issues raised in the application. The remaining two related issues were listed for a consultation which took place on September 19, 2000.
The complaint concerns the implementation of two of the terms contained in the minutes of settlement (“the settlement”), dated January 27, 1998, between the intervenor (“the School Board”) and the responding party (“the Federation”). Mr. Zolis contends that the Federation did not support him in his claims that the School Board had failed to implement fully the settlement. It is useful at this point to provide some brief background concerning the events that led to the settlement.
Mr. Zolis is a secondary school business studies teacher employed by the School Board and its predecessor, the Scarborough Board of Education, as a full contract teacher since 1989. His union filed two grievances on his behalf in 1997. Both were resolved by the settlement referred to above, without Mr. Zolis’ concurrence. Mr. Zolis then filed a section 74 complaint with the Board (Board File No. 3930-98-U) concerning the union’s actions in entering into the settlement unilaterally. That complaint was dismissed, and the Board’s written reasons for that decision were issued on November 22, 1999.
Mr. Zolis subsequently filed the instant application regarding the implementation of the settlement on February 2, 2000. As indicated, most of the allegations were dismissed by the Board on July 27, 2000 for failure to make out a prima facie case of a breach of section 74.
It is useful to set out the two relevant portions of the settlement which are at the heart of the remainder of the complaint. Paragraphs 1 and 2 of the settlement provide as follows:
Mr. Zolis’ sick bank account will be credited to the extent it was depleted by his one-third (1/3 ) medical leave of absence for the second semester of the 1996/97 school year;
Upon Mr. Zolis’ return to work, he will be assigned for one school year to the Scarborough Centre for Alternative Studies. For this period of time, Mr. Zolis will be paid as a teacher with all the benefits of a teacher. His timetable will consist of introductory level business courses, designed in consultation with the Principal.
At the consultation, Mr. Zolis claimed that upon returning in September 1999 to his teaching duties at the Scarborough Centre for Alternative Studies he was informed by his principal that he would be teaching a mathematics class. Mr. Zolis protested that a course in mathematics did not fall within the meaning of “introductory level business courses” as contemplated by paragraph 2 of the settlement. He spoke to representatives of the Federation who he claims were indifferent to his concerns. Nevertheless, within a few days, the School Board changed its mind, and assigned Mr. Zolis to teach an accounting course. He acknowledged that the teaching of accounting qualified as an introductory level business course within the meaning of the settlement.
Mr. Zolis appears to be unhappy in the way he was treated by his principal, but that is not a matter for this application. Assuming without deciding that the School Board was in breach of the settlement by offering the applicant a mathematics course, the School Board rectified the situation by offering Mr. Zolis the accounting course. To the extent Mr. Zolis was initially aggrieved, he was made whole a short time later. He got what he was entitled to under paragraph 2 of the settlement. Assuming without finding that the union decided to take no action in response to Mr. Zolis’s protest concerning the mathematics class, there is nothing to suggest arbitrariness, discrimination or bad faith on the part of the union in light of the immediate remedial response of the School Board in addressing the problem.
With respect to the applicant’s sick bank, Mr. Zolos conceded that the School Board did, in fact, place to his credit 30 sick days, representing the amount by which his sick bank was depleted in the second semester of the 1996/97 school year. However, he had other concerns in terms of deductions it made from his sick bank in respect of matters unrelated to the 1997 grievances. He also relied on what he characterized as a representation made to him by the Federation following the settlement that Mr. Zolis had been granted sick bank credits in excess of 60 days. The Federation contended that the representation it made to the applicant concerned both the 30 sick days obtained pursuant to the settlement and other sick credits to which the applicant had become entitled in matters unrelated to the 1997 settled grievances. The Federation conceded that its communication to the applicant on this point may well have been confusing, thus giving him the wrong impression.
Again, it is the Board’s view that Mr. Zolis got what he was entitled to under the settlement of his 1997 grievances. He appears to be dissatisfied with other events related to his sick bank, which tend to reduce the impact of what he gained via the settlement. He may, as a result of the Federation’s communication to him, have gained a false impression respecting the number of sick credits he was entitled to pursuant to the settlement. The fact is, however, that 30 sick days were credited by the School Board to his sick bank, representing the number of days by which his sick bank had been depleted during his leave of absence in the second semester of the 1996/97 school year. The School Board made deductions from Mr. Zolis’ sick bank for alleged overpayments of paid sick leave in relation to events not relevant to the settlement of the 1997 grievances. Again, those events are not matters for this application. As the School Board complied with paragraph 1 of the settlement, the Federation had no cause to claim that the settlement had not been implemented. To the extent it decided not to take any action on Mr. Zolis’s behalf in these circumstances, the Federation did not exercise bad faith or conduct itself in an arbitrary or discriminatory manner.
The application is dismissed.
“Patrick Kelly”
for the Board