Opening Statement



Wednesday, 27 February 2013

Released: The OECTA MOU OLRB Ruling!


Pundits: Ready! Steady! Go ... Here is the OLRB link to the full ruling: OLRB OECTA Ruling
News Flash: OECTA President Kevin O'Dwyer sent out a tweet at approximately 7:30 onTues Feb. 26:
 "Complaint to OLRB against OECTA MOU process dismissed - OLRB confirms OECTA's actions consistent w/  OLRA"

Wednesday morning OECTA issued the following press release:  
TORONTO – Yesterday, the Ontario Labour Relations Board (OLRB) dismissed the complaint against the Ontario English Catholic Teachers’ Association (OECTA) brought forward by four parties representing local OECTA units, following the signing of the Memorandum of Understanding (MoU) with the government.
In his decision, OLRB Chair Bernard Fishbein stated that the facts outlined in the applications ”do not make out any possible violations of the Ontario Labour Relations Act and are therefore dismissed.”
“This decision re-affirms that the local presidents and the Provincial Executive established a process in good faith, with the best interest of the membership in mind, and consistent with our obligations under the OLRA,” says OECTA President Kevin O’Dwyer.   During the past several months, OECTA’s Council of Presidents and Provincial Executive worked collaboratively to develop a new bargaining procedure to address the members’ concerns about ratification of future provincial deals. Adds O’Dwyer, “This is the best place to address the concerns of the members, and will strengthen our position as we anticipate a new provincial bargaining process as identified by Premier Wynne.”     

One remains surprised with the summary. Indeed the the conclusion of Chair Fishbein's verdict, quoted above, reads as follows:
 Accordingly for the reasons outlined above, even if all the facts alleged in the applications are true, these applications do not make out any possible violations of the Ontario Labour Relations Act and are therefore dismissed.
[Emphasis mine]

Victory would seem to be Mr. O'Dwyers as he lays claim in his email. However, the "reasons outlined" for his decision by Mr. Fishbein consist of 43 detailed points in his 21 page ruling. Far be it for me to be able to analyse let alone publish the full verdict here on my blog, as I usually do, due to it's great length + depth. A weblink to the full text has been provided for your own perusal.

It will be interesting to see the various complainants' analysis and response. I would assume that this will be provided by some of the larger units in the days ahead.

However, one wonders: Fishbein clearly suggests that the judgement wasn't based upon the actual complaint details, in either the local unit's or the M7's complainant's case about the OECTA MOU ratification process. Did the OLRB instead rule as OECTA requested, that the complaint be dismissed without a hearing? 

Indeed, OECTA Provincial made two attempts to have the complaints dismissed before they could be heard. The arguments basically were that they couldn't be ruled upon by the OLRB under the OLRA or Bill 115. I can't recall the complaints themselves ever being dealt with in any depth beyond the original presentation at the November 26th hearing. You can find out more details about the hearings on these previous blogs in which I covered the case:

Feb 5th hearing: OECTA MOU OLRB 2

Nov 26 hearing: OECTA MOU OLRB 2

Nov 26 hearing: More Hearing Minutes

Metro 7 OLRB MOU Complaint: M7 Manifesto

It seems OECTA Provincial did not violate the labour act. OK. How so? We will have to wait to see, which could take a lawyer or two or three. Whatever the answer, I am still concerned because as we know one can do lot's of things using any rules, but it still doesn't mean it is the right thing to do. 

Might I humbly submit in the meantime that the reader carefully consider paragraph 28 of the OLRB reading. It seems the internal workings of our OECTA constitution are not in fact the purview of the OLRB, as OECTA argued. However Chair Fishbein does not rule on whether the constitution was violated in the spirit or the letter of the by-laws. He states: 

28. What the applicants complain about is the conduct of OECTA in reaching its accommodation reflected in the MOU with the Government. They say it violates the constitution and bylaws of OECTA and attacks OECTA’s core values. Whether that is an accurate characterization or not, the Board has repeatedly stated that it is not a “watchdog for internal union affairs”. It is not for the Board to enforce the constitution and bylaws of any particular union. There are other forums in which that can be done. Unlike the unique provisions for trade unions in the construction industry (see for example sections 147 to 149 of the Act which explicitly give the Board authority and jurisdiction to do this in certain circumstances); section 74 has no such reach. 

The OECTA MOU: Much confusion still exists!

Further, as Mr. Fishbein notes, the complaint would need to be between the teachers + our employer for section 74 of the labour act to apply. The MOU certainly muddies these waters. Only then could he rule on the actual complaints, otherwise not. In no way did Mr. Fishbein render a verdict on the legitimacy of the complainants' case, only that it could not be ruled upon by the OLRB. In paragraph 32 he states:
34. I refer again to those cases at paragraph 25 supra, that OECTA pointed me to where the obligation to communicate (and ratify) as part of the duty of fair representation did not cover those situations which were not exactly negotiating a collective agreement (Loblaws, supra, A&P, supra). But more importantly, fundamental to being a collective agreement is that it be between an employer and a trade union. Whatever the MOU is – social contract, how OECTA might choose to characterize it, “sell-out”, as some of the applicants might choose to characterize it, or whatever – it is not with the applicants’ employers, but with the Government of Ontario. To put it starkly, if OECTA as a stakeholder was invited to or involved in consultations with the Government about amendments to the Labour Relations Act, the Education Act or any applicable piece of legislation (which no doubt also could dramatically affect terms and conditions of employment of teachers – See those sections or regulations under the Education Act that deal with mandatory teachers’ duties just by way of example) – is that interaction with the Government subject to the reach of the Board in section 74? I do not think so. 
 Also please stay tuned for a lot more informed analysis in the days ahead as the real experts take this verdict to pieces + come up with the answers!

Post your Comments below:

13 comments:

christine m said...

just want to make sure I am up to speed (prior to last summer, I had only a vague awareness that the OLRB even existed, now it seems I follow their every move!) So this case with OECTA was the complaint by the members that their union acted inappropriately in agreeing to the MOU without taking back to their members first? and the Fishbein guy said that wasn't wrong?? hmmm... how suspicious. I eagerly await the further insight you will be providing us with.

Anonymous said...

Funny how everyone agrees now that all OECTA members should be allowed to vote on their own contract, isn't it? Where was all of this incredible 'common sense' in July?

Anonymous said...

Aside from ETFO I'm starting to get the feeling that Provincial union leadership makes decisions based on their own self-serving interests and not that of the membership as a whole. The leadership has become so entwined in internal squables, the political process, party affiliation and personal gain that our unions have become the furthest thing from a democracy. I may sound cynical but how can we be anything but given this round of negotiations...? What represenation am I getting for my dues...? Our fight is becoming with our own leadership as much as the government!

ETFO Steve said...

I guess we'll find out what ETFO is made of on Friday. I remain hopeful, but sadly, disappointment seems to be the rule of the day lately.

Mr. O'Dwyer can say anything he wants about the OLRB ruling. What's important is whether the rank and file OECTA members pass the intelligence test at the next annual meeting/election. Looking back to December when your local agreements were approved across the province, the prospect of a passing grade seems remote. No belief in freely negotiated collective bargaining there; just roll over and show your soft underbelly subservience. The resounding message seems to be that everything that has happened in the last year is peachy keen with OECTA. OECTA is in lock step with the corporate elite for the suppression of everyday people. There has been precious little to suggest otherwise. (It was good to see a few light blue flags at the protest on January 26, but most of you were nice and warm at home.) Come on Catholic teachers. Throw us, who believe in a better system of leadership, a crumb. GET RID OF THIS CLOWN!!!!

Anonymous said...

Ombudsman. That is what OECTA and other unions need to check and control the power of all provincial and unit leaders. Not one AGM 2013 resolution about giving all members a vote on provincial executive candidates, or a sunshine list of provincial salaries that we pay for, or a vote for each member on contributions to poltical parties by OECTA.Keep paying all the bills but no say or input for the rank and file OECTA member. Time for real change is now. Where does James Ryan stand on these issues?

David Chiarelli said...

Hear you loud and clear ETFO Steve!

David Chiarelli said...

Nope. Not one oecta agm motion gives our members a leadership vote. I understand ETFO does most all of its voting quickly online now. Too democratic for the other affiliates?

David Chiarelli said...

There is a fine dividing line between cynicism and realism. Here its long been crossed!

David Chiarelli said...

I will be asking Mr. James Ryan + the rest of the candidates to explain their OECTA positions on my blog next week. James has all ready said he is on!

Anonymous said...

If the MOU not a Collective Agreement and there was no Collective Bargaining, why was Kevin O'Dwyer (our fearful President) continously sending us collective bargaining updates all summer and through the fall months of 2012? IF it looks like a duck, swims like aduck and quacks like a duck, then it probably is a duck!!!

Anonymous said...

Don't denigrate Ducks. We had no vote on the MOU either! Signed Donald, Daffy, Huey and Dewey, and Disco Ducks.

Teachhard said...

Is regulation 274/12 improving fair hiring or not? Why do I meet unhappy substitute teachers who can't get on the LTO Roster? Didn't OECTA fail by letting boards use the interview process to screen-out non-family members? Teachhard

David Chiarelli said...

Interesting question. Traditionally a big problem with the boards! Am not sure most folks will read your comments here though. Perhaps better to submit under a more current posting?

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