Friday, 8 March 2013
Complainants' Response to the OECTA OLRB Ruling!!
Latest all affiliate news up dates @: March News Link Digest 1
The following legal response is independently submitted by the OECTA MOU OLRB complainant units: York, Ottawa, Sudbury Elementary, Halton Elementary, + the Metro 7. It is shared by them with our fellow union members for your erudition at the OECTA AGM 2013. It provides their official response.
These documents can help you in understanding the references + context of the complainants' response:
Here is the complete text of the OLRB Ruling: The Text
Read OECTA Provincial's statement on the ruling: The Statement
Here then is the OECTA complainants response to OECTA Provincial about both their actions + Chair Bernard Fishbein's ruling:
ONTARIO LABOUR RELATIONS BOARD (OLRB)
This is the official response on behalf of the members who filed the initial complaint(s) with the O.L.R.B. This is a “fact based response” to the O.L.R.B. report from Mr. Bernard Fishbein.
“York Unit, Ottawa Unit, Sudbury Elementary Unit, Halton Elementary Unit, individual members of O.E.C.T.A. (Metro 7)”
Above, are the members and/or units that did file a complaint with the O.L.R.B.
#11. “By decision dated October 22, 2012, the Board directed an oral hearing to deal with the preliminary objections by O.E.C.T.A. Hearings were held on November 23, 2012 and February 5, 2013 to deal solely with O.E.C.T.A.’s preliminary objections.”
….. Bernard Fishbein, page 8, #11.
The O.E.C.T.A. Provincial lawyers took the position that the O.L.R.B. had no right to even hear the complaints. Mr. Fishbein then allowed oral presentations on October 22, 2012 and February 5, 2013 to deal only with O.E.C.T.A.’s objections. If successful, the body of the complaints would never be addressed.
#43. “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 Labour Relations Act and are therefore dismissed.”
….. Bernard Fishbein, page 21, #43
This was the conclusion of Mr. Fishbein in terms of the preliminary objections raised by O.E.C.T.A. He made it very clear that, “even if all the facts alleged in the application are true” he was not able to rule on the contents of the objections because the O.E.C.T.A. lawyers were able to make convincing arguments as to why he did not have jurisdiction to do so.
#26. “The question remains whether the P.D.T. process and the negotiation of a M.O.U. is the negotiation of the collective agreement with the employer of the members of the bargaining unit. I believe that these applications fundamentally misconceive and mischaracterize the P.D.T. process as collective bargaining or its equivalent.”
#19. (10) “The Board has also determined that the trade unions duty of fair representation is restricted to the unions representation of the employees in the bargaining unit in their dealings with their employer.”
….. Bernard Fishbein, page 15, page 11
#32. “What is in disputable is that the M.O.U. was the result of negotiations with the government – not employers.”
….. Bernard Fishbein, page 17
In short, Mr. Fishbein made it very clear that the O.L.R.B. can only intervene in a dispute in an employee versus employer relationship. The M.O.U. was a deal struck between O.E.C.T.A. and the government. The government is not the employer. The school board is the employer. Therefore, because the M.O.U. is an agreement between O.E.C.T.A. Provincial and the provincial government, and not the employer, the O.L.R.B. has no jurisdiction to rule on any aspect of the M.O.U.
#13. (18) “This Board has no specific authority under the Act to undertake any sort of watchdog role over a unions internal processes under its constitution and by-laws.”
#13. (24) “The Board wishes to emphasize once again, that it does not consider it to be its mandate or function to act as a “watchdog” over a trade unions constitution, or to monitor irregularities internal trade union procedure.”
#28. “It is not for the Board to enforce the constitution and by-laws of any particular union.”
#41. “Again, to the extent that O.E.C.T.A.’s constitution or by-laws have been violated (and again I make no decision about that), the forum for such disputes has never been the Ontario Labour Relations Board.”
….. Bernard Fishbein, page 13, page 16, page 21
This is the second critical and fundamental response from the O.L.R.B. Not only will the O.L.R.B. not rule on the M.O.U. as stated above, it will also not rule on any violations of the O.E.C.T.A. handbook.
Fact #5 and Fact #6 ought to be branded into the minds of every O.E.C.T.A. member of the Province of Ontario. Whatever one believes or believed what the role of the O.L.R.B. is or was, it definitely will not rule on any negotiated agreement unless it is an agreement between the teachers and a school board and more importantly, the O.L.R.B. will never intervene if our O.E.C.T.A. Provincial handbook is ever violated. Mr. Fishbein does offer two suggestions on how O.E.C.T.A. members can proceed in other forums. They will be addressed shortly.
#30. “Where bargaining unit members are exclusively in the hands of the union, bargaining unit members can independently have access and make representations to government, just like they could too WSIAT, or file an OHSA complaint. Whether they will actually be effective, or if the government will listen, will depend on a variety of factors.”
…. Bernard Fishbein, page 16
For individual O.E.C.T.A. members or units to carry on as they have attempted to do with the O.L.R.B., is cost prohibitive. The complaints listed here alone have costs local members tens of thousands of dollars. To pursue through other legal avenues when we are up against O.E.C.T.A. Provincial sitting on a $41 million dollar reserve fund, financially alone, any other legal avenues are absolutely financially prohibitive. However, Mr. Fishbein does offer a very realistic and democratic solution to the O.E.C.T.A. membership in Fact #7.
#40. “No one disputed that there are upcoming elections in O.E.C.T.A. where virtually all the leadership responsible for the M.O.U. will be challenged. This is the appropriate place for the wisdom of these choices made by the O.E.C.T.A. leadership to be measured.”
“This kind of accountability to O.E.C.T.A.’s membership is best determined through O.E.C.T.A.’s own internal democratic procedures.”
….. Bernard Fishbein, page 21
Clearly, this statement made by Mr. Fishbein says it all and in Fact #9; I will again state a similar quote from one of O.E.C.T.A.’s lawyers.
“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 O.E.C.T.A. President Kevin O’Dwyer.”
….. O.E.C.T.A.’s News Release February 27, 2013
There is nothing in Mr. Fishbein’s ruling that even remotely suggests that O.E.C.T.A. operated, “consistent with our obligations under the OLRA.” Clearly, there is nothing in Mr. Fishbein’s response that would even allude to that statement, especially when you consider Facts #4 and Fact #5 above, which indicates the reasons why the O.L.R.B. was not going to rule on these complaints. Further, to cite Mr. Fishbein again, “again, to the extent that O.E.C.T.A.’s constitution or by-laws have been violated (and again I make no decision about that), the forum for such disputes has never been the Ontario Labour Relations Board.”
When our lawyer, Andrea Bowker, was consulted on Friday, March 1, 2013 with regards to the statement made by our Provincial President, Ms. Bowker responded, “And as far as "consistent with the LRA" goes – it's hard to say that conduct that is not even covered by the LRA is "consistent" with the LRA.” There you have it, our Provincial President, Kevin O’Dwyer, putting a spin on Mr. Fishbein’s response to our complaint when the O.L.R.B. indicated time and again, it was not going to rule on either the negotiation of the M.O.U. or the process followed in negotiating the M.O.U. This is shameful.
“If the Provincial Executive was wrong in its assessment, then, as they say in Brooklyn, ‘kick the bums out’.”
….. Paul Cavalluzzo, O.L.R.B. Hearing on November 23, 2012.
As a result of the O.L.R.B. complaints and ultimately the response from Mr. Fishbein, in writing, it is abundantly clear that O.E.C.T.A. Provincial through negotiating an M.O.U. and potentially violating sections of our provincial handbook, managed to do so beyond the jurisdiction and scope of the O.L.R.B.
In the end, the O.E.C.T.A. membership can only rely on the direction given by two esteemed lawyers as stated in Fact #7 and Fact #8 where they can indicate their pleasure or displeasure with regards to the M.O.U., and the processes followed in negotiating the M.O.U., by going to AGM 2013 and vote accordingly.
For other related "Blog the AGM 2013" materials see: More important information!
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Posted by David Chiarelli at 00:47