School Board Update
Arbitrator Rules That He Has No Jurisdiction Over ETFO Central Grievance Concerning Report Cards
Date: January 12, 2017
In a significant decision, Arbitrator Hayes has concluded that, as a Central Arbitrator, he does not have jurisdiction under the central terms of the Elementary Teachers’ Federation of Ontario (ETFO) collective agreements to consider a grievance concerning a school board’s instructions to teachers regarding the preparation of report cards. The grievance was brought by ETFO against the Ontario Public School Boards’ Association (OPSBA). The Arbitrator concluded that the issue regarding report cards was not rooted in any substantive provisions of the central terms, including those relating to “Professional Judgment”, and thus dismissed the grievance.
The essence of ETFO’s grievance was “whether the Terms in the ETFO Central Agreement enable teachers to ignore local board policies in the exercise of their professional judgment when completing report cards” [at para. 12, quoting an internal OPSBA memorandum].
On February 2, 2016, the Superintendent of the Avon Maitland District School Board responded to ETFO’s communications to teachers by stating that teachers were “expected to follow the Board’s Assessment, Evaluation and Reporting Document” with respect to the preparation of report cards.
In response, ETFO filed a central grievance asserting that the Board had contravened the central terms. It submitted the manner of preparing report cards was governed by the “Professional Judgment” provision of the Central Agreement, not local agreements, and the direction therefore infringed on “the legitimate right of teachers to act differently, in their individual exercise of bona fide professional judgment, in particular circumstances.”
OPSBA objected to ETFO’s grievance on the basis that it did not disclose an alleged contravention of the central terms and therefore could not proceed before an arbitrator appointed pursuant to the central dispute resolution process under the Central Agreement. It took the position that the exercise of “Professional Judgment” in the Central Agreement related to “Diagnostic Assessments” conducted by teachers, not to the use of professional judgment in the completion of report cards. In fact, it noted that there was no reference to report cards in the Central Agreement, save one exception which did not support ETFO’s position. Moreover, it pointed to the Education Act and the “Operation of Schools – General” regulation and submitted that “where inclusion of report cards is intended, specific reference to report cards is made.” The Crown, which was also a party to the central arbitration by virtue of the School Boards Collective Bargaining Act, 2014 (SBCBA), supported OPSBA’s position.
OPSBA and the Crown submitted that the issue turned on a matter of contractual interpretation and a “permissible central grievance must contain an allegation of a breach of a central term”, which this grievance failed to do.
The Arbitrator’s Analysis and Findings
Arbitrator Hayes began his analysis by reviewing the SBCBA and finding that it established a statutory scheme whereby central and local terms are distinguished, the Crown is given a limited role in bargaining and the role of a central arbitrator is circumscribed.
The Arbitrator then reviewed the arguments of the parties and made the following findings:
- neither the SBCBA nor the Central Agreement “permit the exercise of arbitral discretion to proceed, absent a breach of a central term”
- the language of the SBCBA was “dispositive” of the issue
- neither the 2014 Minutes of Settlement nor the 2015 Central Agreement referred to “report cards” but for the one exception which was time-limited in nature and had expired
- only the “Diagnostic Assessment” provision in the Central Agreement expressly referred to “Professional Judgment”: “Given the lack of any reference to report cards whatsoever, the conclusion that the parties intended only that linkage, and no others, appears unavoidable”
- “Diagnostic Assessments” and report cards are not the same, and educators do not conflate the two.
Arbitrator Hayes determined that there was no arguable breach of a central term and therefore, as a Central Arbitrator, he had no jurisdiction over the grievance.
With this award, Arbitrator Hayes has made it clear that there is nothing in the new central ETFO terms that would restrict a school board’s ability to give instructions to its teachers on how to complete report cards.
The award also makes clear that despite the existence of a definition of “Professional Judgment” in the Central Agreement, grievances concerning report cards cannot proceed as central grievances that would be binding on all public district school boards.
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