Canada: Labour Board Rules That Elementary Teachers’ Union Engaged In an Unlawful Strike

In a landmark decision, the Ontario Labour Relations Board held that the Elementary Teachers' Federation of Ontario engaged in an illegal strike when it counseled its members to not participate in voluntary extracurricular activities.

In a decision, released on April 11, 2013, Bernard Fishbein, the Chair of the Labour Board, ruled  that the withdrawal in combination or in concert of participation in extracurricular activities constituted a strike within the meaning of the Education Act.

This decision could prevent future use of the type of concerted work-to-rule campaign that cancelled extracurricular activities for most of the 2012/2013 school year for 1.3 million students in the province's public English-language schools.

Mr. Fishbein also held that notwithstanding the fact that on March 26, 2013, well after the hearing had concluded, the Elementary Teachers' Federation of Ontario (ETFO) withdrew its "advice" to members not to participate in extracurricular activities, there was still a labour relations purpose to issuing the decision and it was not moot.

The Issues Before The Labour Board

The Trillium Lakelands District School Board in cottage country and the Upper Canada District School Board in eastern Ontario had sought a cease-and-desist order again bulletins issued by ETFO in January 2013 that advised members to stop doing anything other than teach the required 300 minutes a day to protest the imposition of contracts under Bill 115, the Putting Students First Act, 2012.

The submissions from the school boards contained e-mails from leaders of ETFO instructing their members not to collect milk and pizza money, attend field trips, supervise sports practices and games, participate in the chess club, distribute school newsletters and attend report-card workshops. Some of the e-mails from local officials to members of the local were quite explicit. For example, "In accordance with the ETFO Executive motion, members should not participate in voluntary/extra-curricular activities...These are voluntary activities and members should not participate in them – full  stop."

The lawyers for ETFO argued that their members were neither coerced or compelled to stop voluntary activities and that their union leaders only offered advice.

The Labour Board pointed out that under section 81 of the Labour Relations Act,no trade union shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union shall "counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike".

However these ETFO communications are characterized, Mr. Fishbein said that no one can credibly maintain or dispute, at a minimum, that ETFO, it's officers, officials or agents "supported" or "encouraged" this activity. The question before the Labour Board was whether the activity amounted to a strike.

Was ETFO Encouraging a "Strike"?

Mr. Fishbein ruled that the collective withdrawal of extracurricular activities fell under the definition   of strike set out in the Education Act even though the activities are unpaid and voluntary. He stated: "Not only does the plain and clear wording of the [Education Act] easily include these activities but I think, if only from both the labour relations purpose and perspective, this is the far better interpretation, particularly, in the education sector with its long history and expectations about the delivery of these types of activities".

While teachers are subject to the ordinary mechanics of the Labour Relations Act strike-lockout regime, they are governed by their own unique definition of "strike" found in section 277.2(4) of the Education Act. It provides:

" 'strike' includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering  with,

  1. the normal activities of a board or its employees,
  2. the operation or functioning of one or more of a board's schools or of one or more of the programs in one or more schools of a board, or
  3. the performance of the duties of teachers set out in the Act or the regulations under it,

including any withdrawal of services or work to rule by teachers acting in combination or in concert and in accordance with a common understanding."

Mr. Fishbein stated that the plain wording of  the statute appears to support the position of the school boards. Mr. Fishbein noted that the activities in question include inter-school or intramural sports teams that have routinely occurred for many years at most, if not virtually all, of the boards' schools – as well as chess clubs, art clubs, bands and choir. He said that by encouraging members to no longer perform any of these activities, ETFO is, at a minimum, "interfering" with either the operation of a school or a program in a school.

Mr. Fishbein also ruled that ETFO was interfering in the normal activities of a board as these activities have been routinely offered for long periods of time.

This decision sets an important precedent for future education sector labour disputes. It will certainly have an impact on any future teacher's union that wishes to counsel or advise their members to collectively withdraw from similar types of volunteer activities. However, the ruling does not prevent individual teachers from choosing not to coach a sports team or supervise the choir after school hours.

The decision also confirms that although the Government repealed the Putting Students First Act, 2012 on January 23, 2013, the collective agreements imposed by that legislation continue to exist and operate.

Legal counsel for ETFO took the position that in light of the repeal of Putting Students First Act, 2012, that all collective agreements established under Bill 115 now cease to exist. Mr. Fishbein rejected ETFO's arguments that the collective agreements do not survive the repeal of Bill 115. He pointed out that the answer lies in section 51(1) of the Legislation Act, 2006.

It provides:

"The repeal of an Act or the revocation of a regulation does not,

  1. affect the previous operation of the repealed or revoked Act or regulation;
  2. affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or  regulation."

In this regard, the Labour Board held that the collective agreements imposed under the Putting Students First Act, 2012 and its regulations remain in effect until August 31, 2014, although the Act and the regulations themselves are no longer in force.

Even though negotiations between the government and ETFO appeared promising at the time Mr. Fishbein wrote his decision, he ruled that it was still necessary to issue the decision due to the school board's fear of a recurrence.

Mr. Fishbein said that he felt he still needed to make a ruling because of uncertain legal status  of the after-school boycott. Mr. Fishbein asserted that this issue "has bedevilled teacher labour relations in the province and others for decades." He stated "ETFO has not asserted that it will not resort to this conduct again." Mr. Fishbein concluded that he was not convinced there is no labour relations purpose to issuing this decision.

On April 10, 2013, ETFO President Sam Hammond said that his members would honour the ruling although the union has said that it intends to challenge it on the grounds that the Education  Act definition of strike restricts a teacher's right  to freedom of association under the Canadian Charter of Rights and Freedoms.1

Mr. Hammond stated: "You can't legislate goodwill. There is no other profession where people are expected to perform hours and hours of volunteer service each week, and then are castigated for making personal decisions to put their principles, their families and their own welfare first".2

The Education Minister Liz Sandals said that the government is reviewing the decision but her focus is on its ongoing discussions with ETFO and rebuilding relationships across the sector.3

The Challenge for School Administrators

For principals and vice-principals in the province, the challenge will be to ensure the continuity of education and the effective operation of their schools. Many public elementary and secondary teachers have returned to extracurricular activities, but some have chosen not to. It is recognized that individual teachers continue to have the right not to participate in these voluntary after-school activities.

Ensuring proper supervision and support of students involved in extracurricular activities and communication with parents about the status of these activities continue to be key considerations during this period of transition.

In meeting with school staff in these challenging times, school administrations should:

  • ensure that teachers and other staff perform required duties and responsibilities;
  • strive to be sensitive, discreet and understanding in dealing with individual staff issues;
  • focus on supporting the school program and student learning;
  • communicate with school staff with clarity; and
  • be professional in providing leadership in the school community.

Principals and vice-principals no doubt recognize that labour relations can create stress and tension in a school environment. School administrators should be aware that with some local issues,  there may be larger political motivations at play. In these circumstances, it is important to put these issues into perspective.

In this period of transition, as most of the extracurricular activities return to Ontario's  public schools, it is important to be patient and calm in supporting the school program. It is recommended that principals and vice-principals continue to build strong relationships with their school staff and union representatives. Where possible, it is recommended that the parties work in a collaborative and inclusive manner to resolve potential areas of disagreement. The focus on all parties should be to continue to support student achievement and ensuring a positive learning experience for all students.

Footnote

1 Louise Brown and Kristin Rushowy, "Landmark ruling bars teachers unions' after-school boycotts", The Toronto Star (April 12, 2013), p. A1.

2 Ibid.

3 Ibid.

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