March 5, 2013 - No. 26

Teachers and Education Workers Stand Up to Blackmail

Elementary Teachers' Union Stands Its Ground

Teachers and Education Workers Stand Up to Blackmail
• What Are the Conservatives Up To? - Enver Villamizar
• What Is the Government Up To? - Mira Katz
• Elementary Teachers' Union Stands Its Ground

Developments at Labour Relations Board
• Spirited Rally Challenges Attempts to Criminalize Protest
• Update on Hearings Concerning Withdrawal of Extra-Curricular Activities by Elementary Teachers
• Board Dismisses Complaint by Catholic Teachers

Teachers and Education Workers Stand Up to Blackmail

What Are the Conservatives Up To?

- Enver Villamizar -

On February 26, the Ontario Conservative Party, lead by type-cast bad-cop Tim Hudak, sought unsuccessfully to pass a motion in the Legislature that defined teachers' duties inside and outside of the classroom. The motion was promoted as being about not allowing a disruption of co-curricular and extra-curricular activities by forcing teachers to do them. The motion attempted to define co-curricular activities as: "timely and fully completed report cards; meeting with parents outside classroom hours; attending staff meetings; marking assignments; and helping students with remediation, special needs and extra work after school [...]"

This is bogus because teachers have been doing all these activities before they were in a legal strike position and following the government-imposed non-agreement. Furthermore, many of these activities -- such as "timely and fully completed report cards," "marking assignments" and "helping students with remediation and special needs" -- were also being done during the brief period of time that public elementary and secondary school teachers were in a legal strike position. It is irresponsible and disingenuous to suggest otherwise.

The few extra-curricular activities the PCs name are being used to foment negative public opinion against teachers and education workers. They are not "programs" that are or have been "protected" in Ontario schools, as the PCs claim they should be, but are activities that teachers and education workers have taken on in the past, in addition to their regular professional duties, because they understand how important they are for their students and for their teaching. At this time however, many are not participating in such activities unless their rights, that have been violated, are restored. And by doing so, they are standing up to a government that is stealing billions from the education system and its students, parents, education workers, teachers and their communities.

The PC motion goes on to state: "[t]hat union leaders should no longer tell front-line teachers how those teachers may use their personal time both inside of or outside of the school day, including but not limited to: volunteering; helping students; supervising, performing or organizing extracurricular or co-curricular activities; and that contravening the aforementioned shall be considered by this House an abuse of union power and that those involved in such tactics should be referred to the Ministry of Labour for investigation for engaging in illegal labour action under Ontario's Labour Relations Act and subject to fines; and that, if fined, they should be reported to the Ontario College of Teachers for workplace harassment and conduct unbecoming of a teaching professional [...]"

The motion fervently seeks to split "union leaders" and "front-line teachers," as if it is not the "front-line teachers" who have been the ones holding the line on the withdrawal of volunteering for sports teams and clubs to try and hold the government accountable for violating rights. "Front-line teachers" have done this not out of fear of repercussions from their "union leaders" but because they are protesting the denial of their rights by the government through its use of Bill 115 and the removal of $2.19 billion from education.

This attempt to divide shows the completely hypocritical nature of the motion itself in that it misleadingly states that "...union leaders should no longer tell front-line teachers how those teachers may use their personal time both inside of or outside of the school day..." In fact, it is the motion itself that seeks to outline what teachers must do on their personal time in and outside the school day! It is another example of self-serving double speak and fraud!

What Is the Government Up To?

- Mira Katz -

Is the Labour Board to be the new venue for sorting out new anti-labour arrangements in education? More and more, the Labour Board is being used to sort out certain aspects of new anti-labour arrangements in the public sector. In the case of the Ontario English Catholic Teachers Association (OECTA) ruling, and the soon to be released ruling on the withdrawal of extra-curriculars, the Board is being used to establish precedents. The government is sorting out how it will proceed in the future with provincial level negotiations in order to undermine the right of teachers and education workers and other public sector workers to say No! This is critical for the government as it wants to eliminate the ability of public sector workers to block the imposition of broader cuts to funding, pensions, benefits, staff and privatization initiatives, all of which are on the agenda outlined by new Premier Wynne's transition team member Don Drummond in his recommendations for the reform of public services.

The Labour Board has confirmed that provincial level talks between the government and unions in the school board sector cannot produce collective agreements. The school boards or their representative bodies are needed at the table, as the employers, to complete the tri-partite arrangement and ensure that agreements can be put in place without the chaos that resulted from the OECTA Memorandum of Understanding (MOU) and subsequent imposition on others. Kathleen Wynne and new Education Minister Liz Sandals -- both former school board trustees -- the latter President of the Ontario Public School Board Association from 1998-2002 -- have the task of getting school boards back to the table for 2014 in order to ensure that teachers and education workers are politically contained and demobilized from the fight for their rights and the rights of all. Provincial level talks to establish agreements and finding ways of eliminating the right to collective bargaining -- what has now been termed "local bargaining"-- under the Labour Relations Act is to become the new normal under a new provincial process and meeting the government's fiscal parameters.

It is no coincidence that since the passage of Bill 115 Kathleen Wynne has called for teachers and education workers unions to forget the past, ie. the dictate and violation of rights, and look towards the future negotiations in 2014 and "a new process." During the Liberal leadership race, leadership candidate Gerard Kennedy put forward a "Peace Plan" which attempted to keep in place the dictate of Bill 115 just in case teachers and education workers get out of hand, but permit local "negotiating tables" on various issues to be set up for a limited period of time. It may be that the government wants to use such a set-up in the future to prevent union members from getting out of hand and rejecting an agreement based on bogus austerity parameters and assumptions. To do this, the government would like to effectively eliminate what are now being called "local negotiations" by having everything go through provincial level bodies, all in the name of permitting some form of local negotiations, but without the right of local units to say No! should they reject whatever parameters the government of the day sets.

The courageous stand of teachers from the Ontario Secondary School Teachers' Federation (OSSTF) in places like York, Niagara, Hamilton-Wentworth who all rejected the tentative Memorandums of Understading (MOUs) is something the government wants to avoid in the future -- not by backing off its anti-social parameters, but by eliminating the ability of local unions and school boards to have a say. They desperately want an arrangement whereby MOUs can be approved by provincial unions, as in the case of the Ontario English Catholic Teachers' Association (OECTA) that keep local units from going on strike and "disrupting" things.

With this are the moves by the provincial government to eliminate the powers of locally elected school boards to say No! The government used its legislative powers to impose a new set of political accounting practices onto school boards forcing them to show banked sick days and retirement gratuities as unfunded liabilities as if all teachers and education workers retire at the same time. This was used to threaten the boards that if they did not accept the government's cuts and usurpation of their role as employer, they would be taken over under the guise of the government having concerns about their ability to keep their financial house in order. They shared their willingness to use these powers in taking over the Windsor Essex Catholic District School Board.

The most significant difficulty in all of this for the government and its austerity partners in the opposition is that teachers and education workers continue to affirm their right to say No! at every step of the way. This was the case with the massive strike votes against the government's dictate, the regular actions of teachers and education workers in their areas and at provincial actions, and the overwhelming rejection of the blackmail which demands that teachers and education workers give up their protest against the violation of rights in the form of the withdrawal of voluntary and extra-curriculars, rather than the government backing down on its violation of rights.

The Labour Restraint Board

The recent Labour Board decision against some local units and members of OECTA, ruled that the MOU between the government and OECTA's provincial executive was not a collective agreement because it was not between the employer (school boards) and the employees (teachers and education workers) and thus the Labour Board cannot rule whether or not members should have had a vote to accept or reject it as this is an internal matter. The Board did not deal with the government for its criminal extortion against OECTA, and teachers and education workers in general, that was carried out by threatening that if they did not sign the deal voluntarily, they would have it imposed on them through legislation.

The Labour Board was also used in January to declare the planned one day political protest by members of the Elementary Teachers' Federation of Ontario (ETFO) an illegal strike. The Board at that time was not permitted to consider Bill 115's violation of rights through the imposition of contracts, which led to the need for the protest in the first place, as Bill 115 had been written to prevent the Labour Board from ever considering this, even though it often does consider constitutional issues when deciding on cases brought before it. All the Labour Board was used for was to ensure that teachers and education workers did not get too out of hand or break new ground, while a "new" government was being put in place to try and subdue their anger and calm the situation.

This shows that while it creates the illusion that the Labour Board is an independent body that is a venue to determine what is right and wrong, when it serves government to restrain the workers from affirming their rights it will be used for that purpose. Meanwhile, when it doesn't serve, and the government's action clearly violates the Labour Relations Act, it blocks the Labour Board from ruling.

Elementary Teachers' Union Stands Its Ground

Kawartha Pineridge elementary teachers proudly display their "I am ETFO" shirts, February 15, 2013. Some boards have attempted to prevent teachers' from wearing the shirts in schools.

On February 28, the Elementary Teachers' Federation of Ontario (ETFO) announced that it will continue to participate in discussions with the government and that its advice to members on voluntary/extra-curricular activities remains the same; that they "should continue to push the pause button [...]" until the union sees "concrete solutions." ETFO had first called on its members to pause voluntary activities in September, 2012 when Bill 115 was passed. This stand was reviewed and reiterated in January following the use-then-repeal of Bill 115 to impose non-agreements on teachers and education workers. At that time, ETFO stated it would review this advice again before March 1.

In a bargaining bulletin to members, ETFO states: "As you know, ETFO has been engaged in provincial discussions with the government since Premier Wynne took office. The tone and nature of these discussions has been respectful and positive.

"ETFO remains committed to working with the government to find meaningful ways to address the current issues facing the education sector. Working with a government team that understands the education sector, we are hopeful that the goodwill extended by the government to date will result in concrete solutions.

"Beyond the initial commitments made by the government team to listen, engage in positive dialogue and explore a more inclusive process for future bargaining rounds, it is going to take real actions to regain the confidence of members in light of the very flawed process during 2012 that resulted in the loss of their fundamental democratic rights."

Developments at Labour Relations Board

Spirited Rally Challenges Attempts to
Criminalize Protest

On the evening of February 26 more than 250 Elementary Teachers' Federation of Ontario (ETFO) members from Trillium Lakelands were joined by colleagues from Durham, Toronto, York, Kawartha Pine Ridge and Simcoe, as well as supporters from the Ontario Secondary School Teachers' Federation (OSSTF) and the Canadian Union of Public Employees (CUPE) in a rousing protest action before the start of the monthly meeting of the Trillium Lakelands District School Board in Lindsay. The action was held to challenge the board's request to the Ontario Labour Relations Board that the withdrawal of voluntary and extra-curricular activities by their elementary teachers be declared an illegal strike, and that the teachers' union, ETFO, be ordered to "cease and desist" from counseling an illegal strike. About 100 other ETFO members and supporters picketed outside a high school in Bracebridge where proceedings of the Lindsay school board meeting were being webcast, while 40 others did the same in Minden.

According to reports, the Chair of the Trillium Lakelands District School Board gave the self-serving right-to-work argument, that in taking ETFO to the Labour Board, her board is acting in defence of its teachers and against the teachers' union leaders who she accused of having "threatened, bullied and intimidated teachers" to withdraw from voluntary activities, saying "it just has to stop."

Steven Colliver, president of the Trillium Lakelands ETFO local said, "Ms. Round has it completely backwards -- our members have been telling us that they feel bullied, threatened and intimidated by the TLDSB. Our board is busy telling anyone who will listen that they aren't doing this to teachers, just the union. They forget that teachers ARE the union -- they are not separate entities. As a result of the recent actions of the board, we have heard a significant number of [teachers] openly questioning whether they'll ever do anything voluntary for the board again."

Teachers and education workers in Muskoka (left) on February 26 and Kingston on March 1, 2013
demonstrate outside their schools.

He also questioned the school board's spending of public dollars that should be going to provide resources to classrooms, to pay high-priced lawyers' fees and for staff members' travel, hotel and other costs for eight days of hearings in Toronto.

While only two school boards initiated the application to the Labour Board against ETFO, others are said to be backing them and in some cases offering to help cover the costs. In response to ETFO's announcement on February 28 that its advice regarding voluntary activities had not changed, the Director of the Greater Essex County District School Board was quoted in the media as saying that teachers were engaging in "illegal strike action" that had the potential of costing them jobs. He added that his board may join the Labour Board complaint, and for the moment was monitoring the situation closely, waiting to hear what the decision was, adding, "I think a number of boards will now be looking seriously at their options."

(My Kawartha, Minden Times, Windsor Star)

Update on Hearings Concerning Withdrawal of
Extra-Curricular Activities by Elementary Teachers

The Ontario Labour Relations Board (OLRB) has been hearing arguments for and against the complaint of two school boards (Upper Canada and Trillium Lakelands) against the Elementary Teachers' Federation of Ontario (ETFO) for allegedly counselling an "illegal strike" and the school boards' request for a "cease and desist" order against the union over its advice to members on voluntary activities. The hearing took place over eight days in January and February. A decision has not yet been announced.

According to a report by ETFO staff member Lisa Mastrobuono who was reporting on the hearings through Twitter, the Labour Board Chair who is hearing the case agreed to split the hearing into two segments. The first segment would deal with whether there had been a violation of the Labour Relations Act by ETFO, through answering the following questions:

1) In light of the repeal of Bill 115, are there collective agreements in place?

2) Do extra-curricular and other strictly volunteer activities fall within the current definition of strike in the Education Act?

3) If these activities do fall under the definition, did ETFO counsel an illegal strike?

This segment of the hearing concluded on February 12, with the decision of the Chair still pending.

Should the Chair find against ETFO on all of the above, ETFO expects the hearings to resume to deal with whether the Education Act violates Charter protections of freedom of association and expression by prohibiting the withdrawal of purely voluntary services as a means of political protest.

Board Dismisses Complaint by Catholic Teachers

On February 26, the Ontario Labour Relations Board dismissed a complaint brought against the provincial executive of the Ontario English Catholic Teachers Association (OECTA) by some of OECTA's members from the Halton, Sudbury, York, Ottawa locals and others. The complaint related to the provincial executive signing a Memorandum of Understanding (MOU) with the Ontario governmenton July 5, 2012 which imposed concessionary measures on local units and deprived members of those locals from having a vote on whether to ratify these measures.

The complaint alleged that the provincial executive of OECTA violated section 74 and 44 of the Labour Relations Act. Section 44 requires a mandatory ratification vote of the members for a "proposed collective agreement or memorandum of settlement," while section 72 requires that a union "shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit."

Background

The MOU severly curtailed the ability to bargain locally of OECTA units and suspended the right to strike. It included a provision that "there shall be no strikes, lockouts or requests for conciliation during local bargaining," which was to conclude by December 31, 2012. (As a condition of the MOU, the provincial executive was also pressured to give up the right of local unions to strike on issues related to local agreements.)

Where consultative votes on the MOU were held by local units in York and Halton, members overwhelmingly rejected it, turning out in massive numbers to express their disapproval. This was an indication that if the government had not used Bill 115 to impose the MOU as a contract, some Catholic teachers may have gone on strike.[1]

The MOU between the government and OECTA was signed after the Ontario Catholic Trustees Association (OCSTA), the representative of teachers' and education workers' employers in the Catholic system, walked out of provincial talks. This essentially meant that the employer according to the Education Act as well as the Labour Relations Act, was not in agreement, and the employees and their employers -- the trustees -- at the local level, were not given a vote.

The MOU was signed under the threat that it would be imposed through legislation if an agreement was not reached. That is what eventually happened to the other unions that did not sign a MOU with the government. At the time of signing, OECTA's provincial executive stated: "We believe that a negotiated settlement is superior to one imposed upon our members through legislation." The MOU was then used by the government as the template for the terms it imposed on members of the Ontario Secondary School Teachers' Federation (OSSTF) and the Elementary Teachers' Federation of Ontario (ETFO); following its arbitrary December 31, 2012 deadline for the unions to accept the terms voluntarily.

The Ruling

The Chair of the Labour Relations Board, Bernard Fishbein, concluded that OECTA provincial's decision to sign the MOU without giving members a vote comes neither under the jurisdiction of the Labour Relations Act nor of the Labour Board as the MOU does not constitute a collective agreement. He said the Labour Board does not interfere in internal union matters, unless they are in relation to a collective agreement or collective bargaining.

In his decision Fishbein stated: "It is the collective agreements that were either freely negotiated (unlikely) or imposed by Bill 115 (more likely) that have taken away any specific terms and conditions of work that the applicants complain about -- not necessarily the MOU -- or put another way the MOU alone was legally incomplete and insufficient to take away or alter those terms and conditions of work. For that to happen, it required a collective agreement with an employer -- a Catholic District School Board -- whether negotiated freely or imposed by Bill 115. However OECTA's conduct may be characterized, it is not OECTA that caused the enactment of Bill 115 or can be held accountable for it -- no matter how distasteful it may be to the applicants."

Further clarifying his decision, Fishbein added: "The applicants say that OECTA intended the MOU to be a collective agreement with the employer. That may be true but it does not alter the fact that the MOU itself was not a collective agreement. It required either the subsequent execution of a collective agreement with a District School Board or the imposition of the collective agreement under Bill 115. [...]

"What is indisputable is that the MOU was the result of negotiations with the Government -- not employers. To bind the employers -- the Catholic District School Boards -- required the Government to do more -- the Putting Students First Act.

"This is not a technical or illusory distinction. 'Collective Agreement' is a defined statutory term in the Labour Relations Act:

"'collective agreement' means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees,..." (emphasis added)

Clarifying why he felt the issue was an internal union matter outside of the jurisdiction of the Labour Board, Fishbein stated: "In these applications the essential character of the dispute was not a representational one as that is understood and defined by section 74 of the Act and the jurisprudence, but really an internal political one about choices made by OECTA. These are choices made by the democratically elected leadership of a trade union. If trade unions are to be truly mature and responsible participants (dare I say "partners") in the workplace and modern society, and the explicitly stated purposes of the Labour Relations Act appear to envisage that they are, these are the kinds of choices left to the membership of the trade union through its own internally devised structure and procedures and not subject to oversight, regulation and "second guessing" by any governmental agency including the Ontario Labour Relations Board -- at least certainly not without the most explicit statutory authority -- which section 74 neither appears to have nor has ever been interpreted to reach."

Note

1. Ontario Political Forum, November 8, 2012, Vol. 2 No. 7

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