A Primer on the Teacher's Strike Decision

The big teachers’ strike decision is due to be released this week.   High school teachers in Durham region, Peel, and Ontario’s north have been on strike since  late April.  They are represented by the Ontario Secondary School Teachers’ Federation (OSSTF / Union).   On May 12, lawyers on behalf of the school boards filed an application to the OLBR alleging that the strike was illegal.  The OLRB is expected to issue a decision soon.  To understand the argument, we need to unpack the complicated legal model now in place for secondary school bargaining.

It’s an interesting legal case, involving a new and exceedingly complicated collective bargaining law enacted in 2014 called the School Boards Collective Bargaining Act, 2014 (SBCBA).  That legislation replaced the old Education Act, which required bargaining take place between the Union and individual school boards.  Since 2005, the provincial government has played varying roles in attempting to coordinate centralized bargaining over key province wide issues, like compensation and class sizes.  In 2014, the SBCBA fundamentally changed how bargaining works.
The SBCBA separates issues into ‘local’ issues to be bargained at “local tables” and central bargaining issues to be bargained at “central tables”.   It injects the state (Ministry of Education) directly into the bargaining process for centrally bargained issues only.   Also at the central table is an employer association representing school boards (an employer bargaining agency) and the OSSTF.   The government does not participate directly in bargaining at the local level.  Bargaining has been ongoing at both the local and central levels for some time now, with relatively little progress it seems.
The Employer’s Allegations
The employer argues that the SBCBA bifurcates collective bargaining into two tracks:  (1) local and (2) centralized, and treats each track as if it were an independent round of collective bargaining for the purposes of collective bargaining and strike rules.  That means that in order to engage in a legal strike, the union must:

1.     Divide up local and central bargaining topics; and then

2.     Comply with all preconditions to a lawful strike in respect of both rounds of collective bargaining (local bargaining and central bargaining).

In order to strike in Ontario, a number of hurdles must be cleared, including mandatory government conciliation, a successful strike vote, insurance of a ‘no board report’, and passage of a mandatory waiting period.  These rules are found in the Ontario Labour Relations Act (LRA).   The SBCBA also adds the requirement that the union give notice of its intention to strike, which does not exist in the general strike provisions found in the LRA.  Since the SBCBA treats local and central bargaining as distinct rounds of collective bargaining, the employer argues,  the union must comply with the statutory preconditions for a strike twice if it wants to strike over both local and centralized items (Section 34(1), SBCBA): two government funded conciliations, two strike votes, two no board reports, two notices of strike, etc.
In this case, OSSTF and the employer’s association reached agreement in December 2014 on what matters were local and central items.  Central matters included class size and staffing issues, salaries, teacher training and development.  The Employers allege that the Union began plotting its strikes against the school boards even before agreement had been reached on which items were local and central.  They allege that the school boards now being struck were targeted for action, and that strike votes were taken even before local and central items has been agreed upon.  It points out that, in the bargaining over central matters, the conditions for a lawful strike have not been satisfied, although the employer concedes they have been satisfied in respect of the bargaining over local matters.
In summation, the Employer’s argument is that the Union is really striking over ‘central’ matters, such as class size, and not ‘local’ matters.  Since the Union is not in a legal strike position in relation to central matters, the strike is therefore unlawful. The evidence put forward by the employer in support of its position includes strike placards on which individual union members wrote complaints about class size and workload, and comments and communications by union leaders to the effect that the strikes are intended to put pressure on the employer at the central bargaining table.
The Union’s Response
The Union denied the allegation it is engaged in an unlawful strike.   It interprets the SBCBA differently, arguing that the rules about strikes and the distinction of local and central bargaining items are not as clear cut as the employer argues.  In any event, it argues that these strikes are over local issues and that strikes over local issues are lawful.   The employer’s evidence that these are disguised strikes over ‘central’ issues is pithy.  The suggestion that what an individual striker writes on his or he strike sign to express their frustration about work can’t possibly transform a legal strike into an illegal strike.  If the law produces that result, then it would violate the Charter of Rights and Freedom’s guarantee of freedom of expression.  It accused the employers of cherry-picking union leader’s quotes to the media about the reason for the strikes and citing them out of the context in which they were made.
The Union emphasized that all of the preconditions for a lawful strike have been satisfied.  If the SBCBA renders an otherwise lawful strike an unlawful strike based purely on the odd expression of concern about class size, then it would raise a serious Charter question about interfering with the right to collective bargaining. In the Union’s view, this application is just a ploy by the employers to continue their ongoing strategy of delaying local bargaining until agreement is reached on all central matters.  It accuses the school boards of bargaining in bad faith by stalling and delaying bargaining over local matters.  The fact that it took nearly 3 weeks for the employers to get around to asserting the strike was illegal cast doubt on whether the employer even believes its own claims.
Concluding Observations
This is an odd and complicated case arising from a flawed legislative model, in my opinion.  We have now used up a couple of week’s of the OLRB’s resources arguing about the meaning and purpose of a vague statute that adds complexity to an already highly complex and volatile collective bargaining model.  I have no prediction on what the OLRB will decide.  The employer could win, I don’t know.  We are dealing with a new law applying to a new fact scenario.  To me though, it’s a silly case that has wasted lots of resources, poisoned labour relations even more than already existed, distracted the parties from the real issues that need to be addressed, and ultimately will make little difference to the lives of the students.
What about remedy?  If 90% of the reason for the strike is ‘local’ matters and 10% is ‘central’ matters, is the entire strike unlawful?  What if it is 50% and 50%, or only 20% related to local matters? In that case, is the remedy to declare the entire strike unlawful, or just “part of it”?  How does the OLRB decide the portion of the strike that is about central matters?  Does the percentage matter?  What’s the remedy if most of the reason for a strike is lawful, but part of the reason isn’t? Shouldn’t the workers still be permitted to engage in a strike over the lawful issues? I have trouble getting around the logic of this.  The workers have a legal right to strike over local issues, so as long as part of the reason for the strike relates to local issues, then the remedy shouldn’t be an order banning the strike.  Shouldn’t it be limited to an order that the workers and union not strike over central matters and that the Union not encourage the workers to strike over central matters?  But that doesn’t stop the strike. Maybe someone can clarify this point for me?
If the employer wins, the industrial relations lesson would appear to be only that unions need to be more careful in communicating their message to the media and in advising their members what to write on signs.  Really?  Is this the ultimate goal of a proper functioning collective bargaining model?  The Union may bring a Charter challenge, which is great for folks like me who are paid to study legal decisions, but will do little to solve labour unrest in the education system.  Meanwhile, none of the underlying concerns that actually cause the labour unrest are being addressed by this proceeding.  The students have still lost the days due to the strike and no remedy the OLRB can order will change that. If ordered back to work by the OLRB, the teachers could just strike again once they have hopped through the legal hoops all over again, for a second time (requiring more government resources), this time relating to ‘central’ matters.  And, in the end, the government will likely just pass Back to Work legislation anyways.  
So, you tell me, what has this extended legal proceeding over the nature of local versus central bargaining issues achieved (other than to give labour lawyers something else to pontificate about)?