LETTER DECISION

BCLRB No. B104/2014

J une 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:
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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.
Page 4 LETTER DECISION
BCLRB No. B104/2014
e) The BCTF's current strike activities include a range of strike activities in
addition to the one-day disruption in classes. BCPSEA's lockout activity
includes the suspension of certain work-related duties, teachers not
attending at their worksite more than 45 minutes before or after school
hours and the 10% reduction in teachers' salaries. I am satisfied that
neither these strike activities nor these lockout activities contravene the
designations in BCLRB No. B74/2014.
f) If circumstances change in the future or an amendment to the strike or
lockout activities is found to cause an "immediate and serious disruption to
the provision of educational programs" the Board can amend or vary the
existing essential service designation (BCLRB No. B74/2014). In so
doing, 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 of
Part 6 of the Code.
7 I turn now to BCPSEA's argument that the 10% reduction in teachers' salaries is
not part of its lockout activity. BCPSEA says the issue is whether the 10% reduction
accurately reflects the reduction in work being performed by teachers as a result of the
strike and lockout activities now in place. Both BCPSEA and the BCTF spent
considerable time on the arbitrability of this issue and whether the Board, and not an
arbitrator, should decide the matter.
8 The Board's role is to address the terms and conditions of the collective
agreement 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 note
that the Employer has stated its willingness to arbitrate this matter. This is not an
arbitrable 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 party
resolution if they so decide.
9 In conclusion, the BCTF's application is dismissed.
LABOUR RELATIONS BOARD

" RICHARD S. LONGPRE"

RICHARD S. LONGPRE
VICE-CHAIR


Interested Parties Listed Overleaf:
Page 5 LETTER DECISION
BCLRB No. B104/2014
Interested Parties:

British Columbia Teachers' Federation
Legal Department
100 - 550 West 6th Avenue
Vancouver BC
V5Z 4P2
ATTENTION: Carmela Allevato
(Fax: 604-871-2288)

Harris & Company LLP
Barristers & Solicitors
Suite 1400, Bentall 5
550 Burrard Street
Vancouver BC
V6C 2B5
ATTENTION: E.J . Harris, Q.C. (For the Employer)
(Fax: 604-684-6632)