Opening Statement



Tuesday, 2 April 2013

ETFO EC OLRB Again!



EC OLRB = Decisions, more decisions + now even decisions about decisions

The school boards seem as determined as ever to teach the teachers a lesson about EC's [extracurriculars]. The ETFO advisory has been lifted. The affiliate is locked down in talks with the MOE to hammer out a deal over the MOU. Ditto OSSTF. However, the withdrawal of voluntary services remains a point of contention for the Upper Durham DSB and Trillium Lakehead District School Boards. They want Chair Fishbein to issue his verdict on their ETFO EC complaint. They began arguing their case on Jan. 25th and still have not received a ruling.

At their request another OLRB hearing was called today. Chair Fishbein still has not made a ruling on their EC complaint. You will recall the hearings dragged on for 9 long days through much of the following month or so against he backdrop of Bill 115, the enforced OSSTF+ ETFO contracts and EC advisories.

Here is a brief summary of the statements made by ETFO and the boards legal counsel during todays relatively short hearing. I am indebted to Lisa Mastrobuono and "Calphonso" for their Tweets which I have basically transcribed here as I understand them. This is not to detract from their excellent live feed today. Rather I hope to allow my readers who have missed it the opportunity to find out what was said and to provide an easily accessible reference for those of you who will want to refer back to it.

ETFO legal counsel Harold Goldbatt had 30 minutes to make a statement. ETFO is confident that it would win the case if a ruling were announced. He asked the Chair not to though. If ETFO were to loose, more days would then need to be scheduled to consider the charter issues which are also involved.

There has been a cessation of the conduct that the school boards were complaining about. ETFO has lifted it's advisory against teacher participation in EC's. The boards will be wasting a lot more of the taxpayers dollars to continue the case when a decision on EC's is no longer needed. There is now no further need for a labour relations ruling from the OLRB.

ETFO isn't asking the chair not make a decision and dispose of it. Rather they are asking him to "seize" the decision, that is, he can hold onto it should the circumstances change. A ruling could have an adverse effect on ETFO's current talks with the government. Also on teachers who are individually deciding whether to resume EC's or not. The chair has the legislative discretion to seize the decision should the chair so wish.

The OLRB ruling would be moot at this point in time and to seize the decision would not be without legal precedent. It would have no effect since ETFO has all ready lifted the advisory. As such it would only be a theoretical exercise. It is not necessary to release a decision just because one of the parties asks for it.

Both ETFO and OSSTF have come to agreements with the government The decision is now academic. It could have a destabilizing effect on the government talks. The decision would only apply to 2 school boards. No other board has joined in the complaint. In the past the OLRB has asked itself 2 questions: does the situation that prompted the complaint exist? Is the decision still relevant? In neither instance is this the case.

The school boards legal counsel, Mr. Michael ["buttons"] Hines delivered his submission next. He noted Mr.Goldblatts submission make it clear that EFTO is content with where things now stand, and doesn't want that disturbed by the OLRB. It's clear ETFO wants the chair to endorse it's political agenda and become involved in  the "political intrigue" [ed. Good Lord! Does Fishbein have any secret buttons?!?;-]. However this is an issue between the school boards and ETFO, not ETFO and the government. [ed. Ditto?!?]

The government isn't here observing the proceedings. That shows it isn't concerned with the decision one way or another. However the matter needs to be expeditiously heard on behalf of the victims; the children who suffered as a result of ETFO's actions.

The case began on January 25th, and we still don't have a decision. Now ETFO wants to walk away from it. Later on down the road, they will ask their members to withdraw from EC's again. ETFO wants to be able to do so without being called into account for their actions. Already they have had a two month "free ride" to use the "children as currency". [ed. No comment.]

Without a decision, teachers and more specifically the teacher federations retain the power to exploit the "disappointment of children". The OLRB has to take it "on faith" that ETFO's advice to the members won't be reversed tomorrow. ETFO was only looking out for its members when it suspended its advice. Beforehand ETFO was oblivious to the OLRB hearing.

There are no guarantees that the "ETFO peace" will last depending upon a future meeting or their strategy. ETFO argues that this case is a "freedom of expression" [Charter] political issue. Politics is never ending. We can only anticipate that ETFO is learning lessons about to how to exert political pressure during collective bargaining as he speaks.

The members still have to agree on any new deal or the EC pause could continue. It only suits ETFO's purposes now not to have a deciosn, otherwise it's position would have been different. There has been no undertaking on ETFO's behalf so the school boards know that the withdrawal won't be rescinded within 24 hours, in which case the OLRB decision could be very important.

Whether the withdrawal of services is an illegal strike is the critical issue that needs to be addressed. Teachers want the decision. They will act responsibly since they want to know what the legislation really means, so they can obey the law and act accordingly. The school boards aren't trying to "dictate" to them what to do the way ETFO does.

Hines wonders if it wouldn't be better to suffer through further hearings, if need be, to reach a decision to stop ETFO from "playing this game." This doesn't just involve 2 school boards, it's a larger strategy and so it deserves a decisionTransparency is needed to avoid rumours and unnecessary mistakes. ETFO hs made "no bones" that it's EC advice is designed to pressure the government to bargain. There are no authoritative cases like this one where such profound issues of public interest have not been resolved with a decision. With the corrosive situation in the education sector it could also be about OSSTF or OECTA in the future.

ETFO's legal council Harold Goldblatt is allowed a 15 minute rebuttal. He notes that no other school boards have an interest in the OLRB decision. He takes exception to Hines castigating ETFO for getting a "free ride". ETFO is here to assert it's members rights. They are being used appropriately.

The case is not a matter of politics, its a labour relations issue where there is no longer any pressing need for a decision. The only parties requesting a decision are the two "rogue boards", otherwise it serves no other purpose. The original dispute raised with the OLRB was whether the ETFO EC conduct is a strike activity. There is no longer any overwhelming need for a decision. Even the majority party of interest, the government isn't here asking for a decision, only 2 small school boards.

Goldblatt concludes within his time limit.

Chair Fishbein notes he is struggling with the competing interests presented today. If circumstances change both parties are free to communicate with the OLRB. The OLRB will not be releasing a decision today about whether to release a ruling. He will issue a written statement soon on whether there is a need to do so.


Here is a big red circle button, no secret about it!

FYI: The Toronto Star reports on today's hearing @ Toronto Star

COMMENTS HERE:

3 comments:

Anonymous said...

David-Do you know anything about members without a retirement gratuity getting paid $0.25 on the dollar for their accumulated sick day banks? For those of us with 200 days accumulated that would mean payouts of $20000.00+?

David Chiarelli said...

I can't speak to the OSSTF deal. However, with the MOU it was 10% but worked out to only 4% in the estimated return of the unused sick days for those with less than 10 years experience who weren't going to get their gratuity. The rest of us had our gratuity grandfathered and just lost our sick days. Long and short? Wait to see. The devil is always in the details! Solidarity! David

Anonymous said...

Just pointing out a small error. It is actually Upper Canada District School Board, not Upper Durham. No worries!

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