lrb ruling june 4

8/12/2019 LRB Ruling June 4

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LETTER DECISIONBCLRB No. B104/2014

June 4, 2014

To Interested Parties

Re: British Columbia Public School Employers' Association-and- British Columbia Teachers' Federation(Sections 47, 73 and 133 Case No. 67225/14)

1 The parties provided me with written submissions that were reviewed at the hearingon May 29, 2014. At the conclusion of the hearing, I agreed to issue my decision within aweek of the hearing as the matter has an impact on the collective bargaining and thedispute presently disrupting education. This is a brief decision addressing the keyelements of the case before me.

2 This matter concerns an application by the British Columbia Teachers' Federation(the "Union" or the "BCTF") pursuant to Sections 72 and 73 of the Labour RelationsCode (the "Code"). The BCTF argues that once the essential service order in BritishColumbia Public School Employers' Association, BCLRB No. B74/2014 ("BCLRB No.B74/2014") was issued, any changes to strike or lockout activity contemplated by eitherparty had to be approved by the Board before such activity could be implemented.

3 The British Columbia Public School Employers' Association (the "Employer" or"BCPSEA") argues that its recent lockout activity does not breach the essential servicescovered in BCLRB No. B74/2014. BCPSEA further argues that the 10% reduction in

teachers' salaries is not a component of its lockout activity. It is open to the BCTF torefer this alleged breach of the collective agreement to arbitration.

4 The BCTF applied to the Board, pursuant to Section 72 of the Code, seeking adesignation of essential services. The parties met and agreed to the designationswhich were then issued by the Board in BCLRB No. B74/2014. It reads as follows:

1. If the Union implements strike action that does not involvefull withdrawal from all duties the following will apply:


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Page 2 LETTER DECISIONBCLRB No. B104/2014

With respect to any before/after school, recess or noonhour supervision normally provided by teachers,before/after school supervision related only to bus dropoff and pick up, and recess and noon hour supervisionwill continue to be provided by teachers subject to the

Employer utilizing management and excluded staff tothe best extent possible to replace teachers for theseactivities. The utilization of management and excludedpersonnel will be discussed locally. If the mattercannot be resolved at the local level, either party mayrefer the matter to the Board formediation/adjudication. The principles set out inBCLRB No. B417/2001, B431/2001 and B194/2011shall apply to this decision.

2. If the Union intends to escalate strike action comprising ofone (1) day per week where teachers intend to withdraw

from all duties, the Union shall provide BCPSEA not lessthan two (2) working days' notice of the names of theSchool Districts and/or schools or worksites affected.Notice to BCPSEA will be deemed to be notice to allaffected employers.

3. If the Union intends to escalate strike action comprising anintention to withdraw from all duties beyond that describedin #2 above, the Union shall give BCPSEA not less thanthree (3) working days' notice. Notice to BCPSEA will bedeemed to be notice to all affected employers.

4. Teachers will be available in the event of any emergency ordisaster situation. In the event of a dispute betweenBCPSEA and BCTF as to whether an emergency ordisaster situation exists, the teachers will perform the workin question. This principle is akin to the "work now grievelater" principle. If a School District considers a situation anemergency, teachers will respond. If there is a dispute as towhether an emergency actually existed, the dispute will beaddressed later.

5. The provisions of Section 73(2) of the Code apply.

6. If there is a dispute arising from this decision, the disputeshall be immediately referred to the Board. The Board willconduct a hearing, by conference call if necessary, andissue a decision within forty-eight (48) hours of referral tothe Board.

7. This decision reflects the current determination of the Boardand is without prejudice to any applications to vary thisdecision. The decision may be varied by agreement of the


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parties or revised by successful application to the Board byBCPSEA or the BCTF. (para. 4)

5 I will deal first with the BCTF's application and whether the Employer wasrequired to apply to the Board under Sections 72 and 73 before implementing any of the

lockout provisions it decided to invoke on or around May 26, 2014. For the purpose ofthis part of the decision, I accept that the 10% reduction in teachers' salaries falls withinthe Employer's lockout activities. I conclude the following:

a) Subject to the designation of essential services, the BCTF is free toengage in strike activities including limiting the terms of the teachers'employment in order to pressure the Employer into reaching a newcollective agreement. Similarly, subject to the designation of essentialservices, the Employer is free to engage in lockout activities includingimposing new terms of employment in order to pressure the Union intoreaching a new collective agreement (see Canadian Assn. of Industrial,

Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989]2 S.C.R. 983).

b) The Board's jurisdiction to address essential service designations is foundin Section 72 of the Code which reads, in part, "the minister may direct theboard to designate as essential services those facilities, productions andservices that the board considers necessary or essential to preventimmediate and serious disruption to the provision of educationalprograms" (see Section 72(2.1)).

c) BCLRB No. B74/2014 states that "[t]he provisions of Section 73(2) of theCode apply" (para. 4). Section 73(2) stipulates in part, that if a designationis made under Section 72, "the relationship between the employer and hisor her employees, while the designation remains in effect, must begoverned by the terms and conditions of the collective agreement last inforce between the employer and the trade union" except as amended bythe Board. The terms and conditions apply only to the relationshipbetween the employer and those employees who are caught by thedesignation. I do not accept the suggestion that once a designation hasbeen issued by the Board and regardless of the scope of that designation,the parties must comply with the terms and conditions of the collectiveagreement until such time as either party applies to the Board to amendthe order.

d) The BCTF referred the Panel to past decisions on essential servicedesignations; for example, Vancouver Police Board, BCLRB No. B277/95and British Columbia Public School Employers' Association, BCLRB No.B214/2011, 203 C.L.R.B.R. (2d) 216 (Leave for Reconsideration Denied,BCLRB No. B236/2011). The designations set out in BCLRB No.B74/2014 are far more limited than designations issued in past yearswhere designation orders covered a broad range of essential services.


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e) The BCTF's current strike activities include a range of strike activities inaddition to the one-day disruption in classes. BCPSEA's lockout activityincludes the suspension of certain work-related duties, teachers notattending at their worksite more than 45 minutes before or after schoolhours and the 10% reduction in teachers' salaries. I am satisfied thatneither these strike activities nor these lockout activities contravene thedesignations in BCLRB No. B74/2014.

f) If circumstances change in the future or an amendment to the strike orlockout activities is found to cause an "immediate and serious disruption tothe provision of educational programs" the Board can amend or vary theexisting essential service designation (BCLRB No. B74/2014). In sodoing, Section 73(2) of the Code would be applied.

6 For the above reasons, I find the Employer's lockout activities are not in breach ofPart 6 of the Code.

7 I turn now to BCPSEA's argument that the 10% reduction in teachers' salaries isnot part of its lockout activity. BCPSEA says the issue is whether the 10% reductionaccurately reflects the reduction in work being performed by teachers as a result of thestrike and lockout activities now in place. Both BCPSEA and the BCTF spentconsiderable time on the arbitrability of this issue and whether the Board, and not anarbitrator, should decide the matter.

8 The Board's role is to address the terms and conditions of the collectiveagreement with respect to work designated as essential: see Section 73(2) of the Code.

As stated above, the strike and the lockout activities that the Employer says give rise to

the 10% reduction are not covered by the designations in BCLRB No. B74/2014. I notethat the Employer has stated its willingness to arbitrate this matter. This is not anarbitrable difference arising out of the current designations in BCLRB No. B74/2014;however, the BCTF and the Employer are free to submit this matter to third partyresolution if they so decide.

9 In conclusion, the BCTF's application is dismissed.

LABOUR RELATIONS BOARD

"RICHARD S. LONGPRE"

RICHARD S. LONGPREVICE-CHAIR

Interested Parties Listed Overleaf:


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Interested Parties:

British Columbia Teachers' FederationLegal Department100 - 550 West 6th AvenueVancouver BCV5Z 4P2

ATTENTION: Carmela Allevato(Fax: 604-871-2288)

Harris & Company LLPBarristers & SolicitorsSuite 1400, Bentall 5550 Burrard StreetVancouver BCV6C 2B5

ATTENTION: E.J. Harris, Q.C. (For the Employer)(Fax: 604-684-6632)

lrb ruling june 4

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