Opening Statement



Sunday, 3 February 2013

OECTA OLRB: Metro 7 Strike Again!

Regular updated teacher news continues on the blog that follows. For an acronym list see my Jan. 13th blog.

Under construction 4:00 pm Monday

On Tuesday February 5th, the OLRB will continue hearing the OECTA units and members complaints against OECTA Provincial's ratification of the OECTA MOU last July 5th. It will be a failure of representation case, because the Provincial Executive ratified the MOU without letting our COP [Council of Presidents] and teacher members see, discuss and vote on it first.



The Metro 7 strike again tomorrow at the OECTA OLRB hearings!

Lodging the complaints are OECTA York, Ottawa, Sudbury + Halton elementary and the Metro 7 private Toronto secondary members group. I will be focusing on the Metro 7's hearing like I did last November, so as not to steal Bad Boy Brock, Liz, Kent or anybody elses thunder.

The Metro 7 are having an especially tough go of it. OECTA will not pay for any of the  complainants legal fees. Why not? It is our members money that they are using in their own defence!  At any rate the Metro 7, as well as the other units, are now presenting consolidated complaints + in the Metro 7's case sharing the lawyers to help stand up to them. It's the only way the Metro 7 can continue to pursue their complaints due to the cost, which is in the tens of thousand of dollars in charges + fees. In the Metro 7's case they are basically fighting the case without any other support now, such that they do not even get release time from school to attend. We thank them for making this great effort for our members during these most dire and challenging times. It's work that needs to be done!

You can read the Metro 7's Manifesto where  they summarize their purpose + the case for their complaints against OECTA Provincial at: Manifesto

During the November 23 hearing, OECTA Provincial was trying to block the OLRB from hearing the OECTA unit + member complaints by evoking Bill 115 against them. Under Bill 115, they argued, the complaints were an internal matter, and not subject to an OLRB hearing or verdict. Indeed the situation was pretty grim. For more details see my comments + the minutes the teachers took at the hearing. SeeOECTA's Case

As we know Bill 115 has been repealed since then. On January 17th OECTA Provincial finally approved a motion against Bill 115. They also approved legal fees so OECTA Provincial could find out what to do next. The outcome of the hearing is now far from certain. Will the OLRB be able to hear and rule on the members complaints against their provincial union for failure of representation of not?

I will be reporting the case throughout the day on Tuesday. Please stay tuned to my blog and perhaps my Twitter account for more details.

In the meantime I would like to provide for your consideration the rest of the Metro 7 minutes from the November 27th hearing when they first tried to present their case. You will sense how hard this is to do, and how tough the OLRB questions can be for the presenters.

When somebody speaks from or for the Metro 7, they will just be identified as M7. When Bernard Fishbein, the chairman of the board speaks, he will be identified as BF. I am reporting on the minutes from the copy given to me as is except for the edits which are identified of course as ....

The minutes I'm looking at read as follows:

OLRB Complaint Hearing: November 23, 2012

Superior Room, 4th Floor, 505 University Ave, Toronto, ON

Present: York Pres, Ottawa Pres, Halton Elemenary Pres  + their lawyer; CUPE + lawyer, Sudbury Elementary Pres + Lawyer; Three from TSU; Lawyer representing Sudbury Catholic, Halton Catholic + York Catholic Boards; Paul Cavaluzzo, Bernie Hanson, Marshall Jarvis; 6 in gallery.

Hearing convened by Mr. Bernard Fishbein a 9:45am Chair of the Board

Four complaints from the various Catholic Teacher groups against OECTA, a number of school boards intervening,

Purpose of hearing : OECTA has made a preliminary motion that all four of these complaints should be dismissed preliminarily. When I first made the order to unite the cases, most were unrepresented, but they have somewhat now consolidated. Today, I will hear from OECTA why these complaints cannot and should not proceed legally. I will let OECTA start and then proceed around the table from the complainants....

Metro 7:...There are lots of unhappy teachers with respect to this. If we look at Section 74 of OLRA, we cannot have sections of your CA enforced before a ratification vote has occurred. The Union does not have a right to implement a CA without ratification, as stipulated in Section 79 of the OLRA. When you read Bill 115, it does mention the MOU, but I doesn’t legitimize it in any way

BF: If you are going to assert that, you will have to take me through the Acts as OECTA counsel did. You will have to show me how to justify the conclusion. You can assert that as a conclusion, but you have to show me how you arrived at that conclusions.

Metro 7: I am living under the MOU from July 5, the Government can impose a contract but the Union cannot impose a contract. Our rights are to vote on a collective agreement. I disagree with OECTA that your striking down the MOU will affect the Bill 115. I want the right to vote. And an Association that says it represents a democracy, how can it deny me the vote.

BF: The hurdle I need to overcome, bill 115 says this OLRB cannot do anything to a CA under Bill 115. OECTA pointed to a section that makes the MOU the CA. So the argument is that they are obliged to have let you have a vote and they did not let you have a vote. And the Bill didn’t get passed until September 12 and it now says I cannot do anything. I cannot make a judgement based on “just cause”. I don’t want to be difficult with you, but this is the conundrum we are it

Metro 7: There are two entities. We are discussing the MOU signed on July 5, 2012. This is what we believe we should have had a vote on it.

BF: Anything else

Metro 7: No.

BF: Ms. Balkor

M7: I wanted to outline what these applications are about as per the complainants, the political argument, the jurisdiction issue, and respond on the no prima facie case argument made by OECTA, then touch briefly on the case law that OECTA has put to you. 

The suggestion has been made that this is an attack on the MOU itself and nothing more. That teachers are unhappy with what MOU does, they think it’s a bad deal, and therefore it should draw the scrutiny of the OLRB. We know that that is not the purview of the OLRB. What the BOARD IS concerned with is the process that led up to it. The process is subject to many sections of the OLRA, but we are concerned today with Sec 74.

Our complaint is that the Union failed to communicate, failed to get authorization, failed to consult with its members and frankly misled its members with the representation of the members and in this case in the context of CB

Our applications indicate in at least five ways that they failed to abide by bylaws and policies of the union in connection with CB, while representing to the members that they would abide by those policies.

They failed to abide by systemic objectives of the union while representing that it would abide by them.

It failed to abide by the authorizing resolution passed by COP while representing that it would abide by that resolution.

It took away or limited the authority of local bargaining while representing that that authority would be honoured

 As is suggested in the Halton complaint, it engaged in bargaining that stripped the CA over and above the parameters of the Government.

It is not just that it stripped collective agreements, but that it stripped them beyond what was authorized.

All of these processes are in place within this democratic institution OECTA, on how it will represent its members in CB and our complaint is that it departed from that process and negotiated an agreement that flew in the face of the representations it made, flew in the face of the processes the union has established for how CB works, and departed in a substantive way.

That round also departed from the manner in which the PE conducted itself in past PDT's. I appreciate that the process was the same as the last time around, but it departed from that practice. The union said it followed the same process and then to depart from the past practice, that is a violation of Section 74.

The complaints are not about saying you violated the policies therefore you breached the ACT, they say you are required by the Act to consult with your members get input from them to guide your actions. Bylaws, policies bargaining objectives COP, are what this union has in place to take care of consultation and CB.

It is not the case that that Union has complete freedom to do whatever it wants. I see the cases that OECTA relies upon, but the cases say the minimum requirement is to consult with members, to not mislead them and to follow their direction. I am not saying that the Union has to pursue anything that a union member wants. I am saying this union has a process for consulting, for providing guidance. It cannot be the case that it is consistent with Section 74 that these can be thrown out of the window.

BF: So the position is that regardless of outcome, the union that doesn’t follow the wishes of their members, they are in prima facie breach?

M7: They are obliged to not mislead. When the Union says they are going to follow a resolution, have that passed, and then do something completely different.

BF: There are minutes of meetings that are not in dispute. We are going to get real specific. We won’t get into a multiday hearing over facts that are similar. Unless you tell me that COP didn’t endorse, or not communicated, etc. When you tell me that they misled you, that they didn’t do what you say they promised to do, you will have to show me a pleaded case before I will allow this to become a multiday case when in the end the facts may not establish.

M7: We asserted that what went into the MOU was not known by the COP prior to its agreement.

BF: But you can’t tell me that it is a violation of the Act because they didn’t follow the procedures, but there is no dispute that there is a COP meeting that endorsed the MOU days after it was ratified.

M7: I think you have to hear evidence of what the endorsement was. It was not what I would consider an endorsement as an approval.

BF: Well now the case is that the adherence wasn’t rigorous enough. I understand that we are talking about when the MOU was signed and ratified. How do you want me to separate that the world has shifted since MOU was signed. It was signed, it was endorsed by COP then a piece of legislation was enacted. We are looking at events up to the signing of MOU. Unfortunately this is not July 6 it is Nov 23. Even if I thought that what they did up until July 5th sucked big time, what is the Labour Relations purpose that has to do with this hearing?

M7: What we are saying is that OECTA had certain authorization from the members which is enshrined in the bylaws and policies and that has been followed in the past, but then OECTA departed from the authorized course. So what we have pleaded is that there is a process that has been followed in the past re PDT and government, there is a process in place about how that works, we then say that it was not followed in the sense that the resolution presented to the COP in 2011 said the discussions would happen for the purposes of facilitating local bargaining, that systemic objectives would be followed. This is the PE coming to COP, who represents the membership for our purposes, and that these CB PDT are going to be informed by Systemic Objectives.

BF: I am not sure what “informed by systemic objectives” means, it certainly does not mean must rigidly adhere to them.

M7:  So now we will look at our bylaws, in our schedule B, the schedule says what bylaws and policies say. So the bylaws, which don’t contemplate the PE actually engaging in CB, but recognizes the rule that CB is governed by 2.74.3.1. These point out that if a local unit departs from the policies of the Association while it is engaged in CB, the Association can notify that Unit and demand that they get back to the policies of systemic objectives. So CB at local or provincial should be consistent with these bylaws.

BF: The difficulty I have is that these bylaws do not contemplate the PDT at all. They appear to contemplate the old scheme of bargaining. Although the old scheme is formerly still in place prior to Bill 115, Since 1998, the local scheme has been increasingly watered down. These bylaws and these policies existed through out the 2004, 2008 PDTs. Other than there were better outcomes, they are as complied with now as they were then.

M7: We have set out In our Schedule, we have pleaded that in all previous rounds of CB since the change to Ed Act, these two Units (York and Ottawa) have conducted CB in accordance with policies and they have had control over bargaining. PDTs have never substituted for local bargaining, they have offered guidance to the parties, they have not been binding, they have not been mandated, it was still up to the local to decide what to do. I understand that it is OECTAs position that it is the same process. It is not our position. We believe that they departed from the priorities of local bargaining.

BF: I hear your points, and this is not the first PDT case I have heard. You want to say that the 2012 PDT was so fundamentally different that I ought not to look at it?

M7:  On the merits of the case, OECTA stipulates that 2004, 2008 2012 are the same, but we are stating that 2012 is not the same as the past two. The past PDTs have facilitated local bargaining, not a replacement of local bargaining. The MOU is not at all the way PDT 2008 and 2004 was done.

BF: I am not going to let this go into evidence for evidence that cannot be contested. When you say that 2008 bargaining was different, but 2008 bargaining gave an increase, more money, the mechanism was the money is available, as long as you comply with the things we wanted in the PDT. I don’t think that is a matter of contention. If that is correct, then it isnt’ black and white to say that in 2012 we were squeezed off at the pass.

It is a question of degree…in 2008 they were giving and everyone was happy to take, but in 2012 they were taking away. You need to show me that the process is any different. I cannot see a prima facie case that “We allowed it this much in 2008 but we are not going to allow it in 2012”

M7: There was status quo plus in the last round.

BF: I believe that is the same as non-concession bargaining. IE: it won’t be tolerated.

M7: It is more than that, it is that PE bargains something without consultation and without following policies and bylaws and systemic objectives and then comes back with not only less than the status quo but status quo minus. So when the PDT happens and displaces all of local bargaining, that is a serious departure from the way PDTS happened in the past. What was described was facilitation of local bargaining, not replacement of local bargaining. We’ve pleased that there was a system of bargaining in the past that they departed from and representations were made that they would follow CB in a particular way and what they came out with was something that did not follow policies, bylaws.

 So your question was Bill 115 has come around so why do I care anymore? This is not the type of situation where this is a one off thing that is unlikely to occur again. Always in the future, OECTA will be governed by bylaws policies, resolutions from COP, that process is going to keep happening. If the assertion is that “it doesn’t matter what bylaws, policies and resolutions say, we are the bargaining agent we do what we want.”

BF:  So if government passes legislation that provincial bargaining must occur, and OECTA doesn’t change its bylaws, then OECTA would be n breach of SEC 74 for following the law?

M7: Well if legislation passes, then that is different.

BF: Well that is what Bill 115 is.

M7: The bylaws and policies are the tools that exist. Can the PE just depart from them and disregard them? If so, then bylaws and policies and resolutions are pointless. We say that this is a violation of sec 74 to follow all the processes then depart from them. I heard from Mr. Caval. That the Association is a democratic institution and a democratic process should be used to resolve the issue. The bylaws and policies and resolutions are the democratic process. That is a violation of Sec 74. When Mr. Cav says on behalf of OECTA “let a democratic entity decide the process” there is a task force set up.

BF: Mr.Cav said “throw the bums out”

M7:  He also reiterated the democratic process, but that is the election, the bylaws, the resolutions etc., then if that question of whether or not PE has to follow them or not is not answered, then it doesn’t matter who is on PE, they can choose not to follow the law. They are saying they don’t have to follow the bylaws et al.

BF: Mr. Cav is saying that if the people cannot follow the bylaws, then vote them out, but it should not be an intervention by the OLRB.

M7 ... The Board has on numerous occasions stated that if you represent to do one thing and then do something else, that is a violation of Sec 74. Sec 74 requires communication, consultation with members. For instance if you don’t consult at all, and get a CA, that is a breach of sec 74
The Board offers remedial relief under sec 74 and we will go through those cases ...

SIC

Stay tuned tomorrow for Part 2 of the hearing as the Metro 7 strike back!!! Let's see how the story continues from here! The hearing will be covered live!

Comment bar is below:

2 comments:

Anonymous said...

C'mon David. You need to learn the difference between its and it's. Actually it is very simple: It's cold outside and I saw a dog with its bowl filled with ice. It's is really "it is" and "its" is possessive. A little effort would be appreciated.

David Chiarelli said...

Mea culpa! It's a problem when it shouldn't be. I am notoriously lazy with grammar + its' rules. Will try better. Cheers!

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