School Board Update
OLRB Refuses to hear CUPE Job Security Complaint
Date: December 2, 2014
In a significant unfair labour practice case, Canadian Union of Public Employees v. Algoma District School Board, the Ontario Labour Relations Board (“OLRB”) held that CUPE’s complaints regarding the alleged alteration of employment terms by ten school boards during the statutory freeze period had to proceed through local grievance and arbitration procedures, rather than as an unfair labour practice complaint at the OLRB. Accordingly, it adjourned CUPE’s application for a period of 12 months to permit outstanding grievances filed under the various applicable collective agreements to proceed, notwithstanding CUPE’s concerns that this would result in multiple proceedings, inefficiencies and inconsistent results.
In this FTR Now we discuss the background to this case and the significance of the OLRB’s decision.
CUPE and the respondent school boards had entered into two-year local agreements or had agreements imposed upon them following the implementation of Bill 115, the Putting Students First Act, 2012. These agreements contained a common Letter of Understanding (“LOU”) that provided for a protected complement of full time equivalent (“FTE”) support staff positions based on a formula.
The LOU and the collective agreements expired on August 31, 2014. A dispute arose between the parties about certain layoffs that occurred during the 2014-2015 school year, which CUPE alleged contravened the LOU. CUPE filed numerous policy and individual grievances under the separate collective agreements, and subsequently filed an unfair labour practice complaint with the OLRB jointly against the school boards. CUPE asserted that the dispute required an interpretation of the s. 86(1) “freeze” provisions of the Labour Relations Act, engaged broader issues impacting all workplace parties, and that proceeding by way of local arbitration would result in multiple proceedings, inefficiencies and the risk of inconsistent decisions.
THE ONTARIO LABOUR RELATIONS BOARD’S DECISION
The OLRB rejected CUPE’s arguments. In reviewing the applicable case law, it noted that the decision to defer to arbitration is discretionary and has been favoured by the OLRB when the nature of the dispute is primarily contractual, as was the case here. In this case, there was no allegation that the school boards were undermining or repudiating the collective bargaining process, nor did the application involve broader issues about intimidation, interference or coercion. Thus, it was clear that a labour arbitrator had jurisdiction to decide the grievance and to grant appropriate relief. The OLRB ruled as follows:
 In this instant case, the Board is satisfied that the nature of this dispute requires an analysis of the contractual obligations of the school board with respect to the protected complement set out in the LOU and the duration of those obligations. Although the analysis must be done in the context of the statutory obligations in s. 86(1) of the Act, the crux of the case depends on the interpretation of the LOU in the collective agreement. The Board does not typically engage in collective agreement interpretation. This is precisely the area of expertise of a labour arbitrator.
 The individual context of the layoffs in each school board also supports a deferral to arbitration. The layoffs were made based on individual circumstances at each school board: attrition, reduced enrolment, funding issues, etc. Both the school board and CUPE will undoubtedly have much to say about how the formula and the calculation set out in the LOU ought to be applied based on those individual circumstances. An arbitrator is best suited to hear the evidence and determine the merits of the position. […]
 The Board is sympathetic to the prospect of nine or more arbitration hearings being held simultaneously across the province and the resources that this might consume. However, the school boards have a right under the individual collective agreement to defend against the grievances using the arbitration process set out in their own collective agreement.
The OLRB also rejected CUPE’s request to impose conditions on the school boards about preliminary positions that they might take before an arbitrator, such as precluding the school boards from raising objections based on timeliness.
IMPLICATIONS OF THE DECISION
Collective agreements in the school board sector in Ontario currently share common language with respect to a number of topics. This is, in part, due to Bill 115, the Putting Students First Act, 2012. As a result, there is a risk that unions and associations in this sector may attempt to characterize some issues as “common” and pursue them at the OLRB as unfair labour practice complaints, against a number of boards.
However, this decision of the OLRB indicates that, with respect to the 2012-14 collective agreements, the OLRB’s preference is to defer such matters to the local arbitration process particularly where the essence of the matter in dispute involves contract interpretation. The OLRB has recognized that the individual circumstances of each school board remain unique and that labour arbitrators remain best suited to hear evidence and to determine contractual obligations. This decision sets an important precedent in support of school boards’ rights to defend against such allegations locally and through their individual grievance arbitration processes.
The ten respondent school boards in this case were successfully represented by John-Paul Alexandrowicz at 416.864.7292, Dolores Barbini at 416.864.7303, Michael Hines at 416.864.7248, Carolyn McKenna at 416.864.7436 and Vince Panetta at 613.541.4003. If you have any questions regarding this decision, please contact any of them or your regular Hicks Morley lawyer.
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