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Ontario Labour Relations Board
**File No.:** 3643-99-U
**Date:** July 20, 2000
**Applicant:** Ontario English Catholic Teachers Association, (“OECTA)
**Responding Parties:** Brant Haldimand-Norfolk Catholic District School Board, (“the School Board”), The Crown in Right of Ontario represented by the Ministry of Education (the “Crown”), and Norbert J. Hartmann
**Before:** R. O. MacDowell, Chair.
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## DECISION OF THE BOARD
### I. Introduction
[1] This is an “unfair labour practice complaint” filed under section 96 of the Labour Relations Act. “OECTA” contends that the named “School Board”, and the Crown in Right of Ontario (more specifically, the Ministry of Education and its Assistant Deputy Minister, Norbert J. Hartmann) have contravened sections 17, 70, 73 and 76 of the Act. Those sections read as follows:
> 17. The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.
>
> 70. 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.
>
> 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.
>
> (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.
>
> 76. 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.
[2] These sections of the Labour Relations Act are applicable to teachers’ organizations and school boards by virtue of Bill 160, that came into effect in late 1997. There is a dispute about whether, or the extent to which, these provisions may be applicable to the Crown, or to an employee of the Crown. OECTA maintains that the Crown can contravene these sections of the Labour Relations Act. The Crown asserts the contrary.
[3] However, since there have not been many cases involving Bill 160, school boards, and teachers, it may be helpful to briefly describe what this particular case is about.
### II. What this case is about
[4] OECTA is the collective bargaining agent for a grouping of teachers who work for the Brant Haldimand-Norfolk Catholic District School Board. In the spring of this year, OECTA and the School Board were engaged in negotiations with a view to concluding a new collective agreement. There was apparently some appetite to get bargaining underway early, in order to stabilize the situation for the coming school year.
[5] Bargaining proceeded in early February 2000, and there were, by that time, several other settlements in the education sector, to which the parties could look for guidance in shaping their own bargaining positions. However, the parties were also aware that there were outstanding regulations that might affect particular conditions of employment, and that those regulations would soon be amended. The parties were therefore bargaining about certain items which either already were, or might shortly be, the subject of legislative prescription - although, of course, no one then knew precisely what those prescriptions would be, nor when they would be issued, nor how the regulations might impact upon what was happening (or had happened) at the bargaining table. Nor, perhaps, was it completely clear what existing regulations might require.
[6] In any event, it does not seem to be disputed that the parties are obliged to bargain within the procedural and substantive framework prescribed by law. If there is a clear operational incompatibility between the negotiated terms of a collective agreement and some external statute or regulations, it is the regulatory regime which must ultimately prevail. The parties cannot (normally) “contract out” of specific regulatory requirements. No doubt that is why an arbitrator is empowered under section 48(12)(j) of the Labour Relations Act to determine whether the negotiated terms of the bargain are congruent with “external” statutory norms.
[7] One of the ways of dealing with this dilemma is a “contract reopener”, that permits the bargaining parties to reconsider their positions – in whole or in part – if such operating incompatibility materializes. The bargaining parties in this case considered that alternative. But for reasons that are now in dispute, that formula did not make its way into the later stages of bargaining.
[8] OECTA takes the position that there was substantive agreement on a particular collective agreement package, from which the School Board improperly withdrew. OECTA says that the School Board “reneged” on an agreed-upon settlement, because of “illegal pressure” from the Crown. In OECTA’s submission, the Ministry (specifically Mr. Hartmann) was the source of certain “threats”, designed to “force” the School Board to back away from a settled position. In OECTA’s submission, the Ministry’s intervention de-railed the bargaining. And, of course, the Ministry is not the nominal employer of teachers, nor is the Ministry a (nominal) bargaining party.
[9] The School Board disputes OECTA’s characterization of events. The School Board maintains that its trustees - who ultimately have to ratify the collective agreement - were properly reticent about endorsing the proposed package, in light of what School Board officials had learned from the Ministry about the regulatory regime, and the consequences that the School Board might face, if a negotiated settlement was not in compliance with those regulations.
[10] The School Board says that just before the trustees were to consider the proposed collective bargaining package, School Board officials sought further information from the Ministry of Education about the content and impact of the regulatory regime. According to the School Board, its officials had been trying to get such clarification for some weeks. And as a result of what School Board officials learned, the School Board trustees were reluctant to proceed with bargaining based upon earlier approaches, now thought to be impermissible.
[11] In the School Board’s submission, there was nothing improper about that. On the contrary, it was a prudent response to legal arrangements by which OECTA and the School Board are both bound, but over which neither the School Board nor OECTA has any control.
[12] The Crown says that it is
minicounsel