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British Columbia Public School Employers' Association and British Columbia Teachers' Federation

British Columbia Public School Employers' Association and British Columbia Teachers' Federation

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Published by Global BC
British Columbia Public School Employers' Association and British Columbia Teachers' Federation
British Columbia Public School Employers' Association and British Columbia Teachers' Federation

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Published by: Global BC on Jun 04, 2014
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06/08/2014

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 LETTER DECISION BCLRB 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 hearing on May 29, 2014. At the conclusion of the hearing, I agreed to issue my decision within a week of the hearing as the matter has an impact on the collective bargaining and the dispute presently disrupting education. This is a brief decision addressing the key elements 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 Relations Code
 (the "Code"). The BCTF argues that once the essential service order in
British Columbia Public School Employers' Association
, BCLRB No. B74/2014 ("BCLRB No. B74/2014") was issued, any changes to strike or lockout activity contemplated by either party 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 services covered 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 to refer this alleged breach of the collective agreement to arbitration.
4
 
The BCTF applied to the Board, pursuant to Section 72 of the Code, seeking a designation of essential services. The parties met and agreed to the designations which 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 involve full withdrawal from all duties the following will apply:
 
Page 2 LETTER DECISION BCLRB No. B104/2014
 
With respect to any before/after school, recess or noon hour supervision normally provided by teachers, before/after school supervision related only to bus drop off and pick up, and recess and noon hour supervision will continue to be provided by teachers subject to the Employer utilizing management and excluded staff to the best extent possible to replace teachers for these activities. The utilization of management and excluded personnel will be discussed locally. If the matter cannot be resolved at the local level, either party may refer the matter to the Board for mediation/adjudication. The principles set out in BCLRB No. B417/2001, B431/2001 and B194/2011 shall apply to this decision. 2. If the Union intends to escalate strike action comprising of one (1) day per week where teachers intend to withdraw from all duties, the Union shall provide BCPSEA not less than two (2) working days' notice of the names of the School Districts and/or schools or worksites affected. Notice to BCPSEA will be deemed to be notice to all affected employers. 3. If the Union intends to escalate strike action comprising an intention to withdraw from all duties beyond that described in #2 above, the Union shall give BCPSEA not less than three (3) working days' notice. Notice to BCPSEA will be deemed to be notice to all affected employers. 4. Teachers will be available in the event of any emergency or disaster situation. In the event of a dispute between BCPSEA and BCTF as to whether an emergency or disaster situation exists, the teachers will perform the work in question. This principle is akin to the "work now grieve later" principle. If a School District considers a situation an emergency, teachers will respond. If there is a dispute as to whether an emergency actually existed, the dispute will be addressed later. 5. The provisions of Section 73(2) of the Code apply. 6. If there is a dispute arising from this decision, the dispute shall be immediately referred to the Board. The Board will conduct a hearing, by conference call if necessary, and issue a decision within forty-eight (48) hours of referral to the Board. 7. This decision reflects the current determination of the Board and is without prejudice to any applications to vary this decision. The decision may be varied by agreement of the
 
Page 3 LETTER DECISION BCLRB No. B104/2014
parties or revised by successful application to the Board by BCPSEA or the BCTF. (para. 4)
5
 
I will deal first with the BCTF's application and whether the Employer was required 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 of this part of the decision, I accept that the 10% reduction in teachers' salaries falls within the Employer's lockout activities. I conclude the following: a) Subject to the designation of essential services, the BCTF is free to engage in strike activities including limiting the terms of the teachers' employment in order to pressure the Employer into reaching a new collective agreement. Similarly, subject to the designation of essential services, the Employer is free to engage in lockout activities including imposing new terms of employment in order to pressure the Union into reaching 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 found in Section 72 of the Code which reads, in part, "the minister may direct the board to designate as essential services those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious disruption to the provision of educational programs" (see Section 72(2.1)). c) BCLRB No. B74/2014 states that "[t]he provisions of Section 73(2) of the Code apply" (para. 4). Section 73(2) stipulates in part, that if a designation is made under Section 72, "the relationship between the employer and his or her employees, while the designation remains in effect, must be governed by the terms and conditions of the collective agreement last in force between the employer and the trade union" except as amended by the Board. The terms and conditions apply only to the relationship between the employer and those employees who are caught by the designation. I do not accept the suggestion that once a designation has been issued by the Board and regardless of the scope of that designation, the parties must comply with the terms and conditions of the collective agreement until such time as either party applies to the Board to amend the order. d) The BCTF referred the Panel to past decisions on essential service designations; for example,
Vancouver Police Board
, BCLRB No. B277/95 and
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 years where designation orders covered a broad range of essential services.

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