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BCTF in dispute designation is a strike
June 15, 2001

The BC Labour Relations Board has ruled that the “in dispute designation” made by the BC Teachers’ Federation against the West Vancouver school board’s CHILD Program is an unlawful strike declaration. BCTF has been ordered to rescind the designation.

The Labour Relations Board also held that the refusal by teachers to accept positions in the CHILD Program as a result of the in dispute designation was an illegal strike and ordered both BCTF and its members to cease and desist from further strike actions and declarations.

This is the first published decision of the Labour Relations Board on the status of in dispute designations, although BCTF has been using them for many years. The decision has significant implications regarding the legality of such designations and the validity and enforceability of certain provisions of the BCTF constitution and bylaws.

Facts
The case arose in the Spring of 2000 when the school board received clear evidence that a significant part of the reason for its declining enrolment was the loss of students to private schools. Many parents were starting their children in private schools at kindergarten because they offered full day kindergarten.

The BC Ministry of Education does not fund more than a half day kindergarten for most students, and the school board could not afford to subsidize the cost of an all day program. It designed the CHILD Program as a half day program to complement kindergarten, and offered it for a fee that was designed to ensure that the program was self supporting.

BCTF and the West Van Teachers’ Association (WVTA) objected to the program being offered for a fee and at the beginning of July, 2000, BCTF placed all CHILD Program positions “in dispute” (click here for BCTF news release explaining the Federations’s reasons for making the designation.)

One term of the BCTF “Code of Ethics” stipulates that a teacher does not apply for nor accept a position that is designated “in dispute” by BCTF. Under the BCTF constitution and bylaws, BCTF can fine, suspend or expel a member for a breach of the Code of Ethics.

The result of the designation was that no teachers applied for posted positions. The school board staffed the positions with vice principals, and the program went ahead. But when teachers on call were asked to take one day assignments part of which included the CHILD Program, they either declined or backed out because of the designation and active discouragement by WVTA. One such teacher on call was visited by the president of the WVTA just before she was to begin the CHILD Program portion of her assignment. The Labour Relations Board decision describes the ensuing conversation:

“Ferguson told Waterman that TOCs had to follow the same rules as regular teachers and that if she worked in the CHILD Program in the afternoon, she would be in violation of BCTF’s Code of Ethics. When Waterman asked Ferguson what would be the ‘worst case scenario’ if she worked the CHILD Program portion of the assignment, Ferguson told her that it would be a disciplinary offence and that it was possible that BCTF would take away her membership. He confirmed that without her membership, she would not be able to get a public school teaching job in the province.”

BCTF arguments
BCTF argued that the terms and conditions of employment of teachers are defined by the School Act, the School Regulation and the collective agreement. It argued that teachers are employed exclusively to provide educational programs as defined by the Act. Because the CHILD Program is not an “educational program” as defined by the Act, the school board was not permitted to require teachers to work in that program.

The union disputed the school board’s assertion that the program was intended to have one teacher teach morning kindergarten and afternoon CHILD Program. It argued that work in that program was not work normally performed by teachers, and that a refusal to do so was not a strike.

BCTF further asserted that the in dispute designation was and should be treated as a hot declaration under section 70 of the Labour Relations Code, and was not a strike issue. It argued that the designation had not signifiantly affected the operations of the school board, and that its interests in protecting its members interests from the threat of two-tiered education outweighd the school board’s interests so that no remedy should be given.

Decision
The Labour Relations Board rejected all of BCTF’s arguments. It ruled that the fact that the union is philosophically opposed the program because it believes that a fee-paying program undermines the concept of universally accessible public education does not place the refusal to perform that work in a special category.

It found that the school board had intended from the inception of the program to have it taught by the kindergarten teachers, and that only the union action had stopped that from occurring. It further determined that the nature of the work in the program is the same as or sufficiently similar to duties normally and regularly performed by kindergarten teachers. The Board rejected the narrow interpretation of the definition of teachers’ duties in section 17(1) of the School Act that had been urged by BCTF, noting that the definition of “teacher” is “inclusive” and that the Regulations take a “broad approach to teachers’ duties”. The Board therefore found that the teachers had no “clear and unambiguous” right to refuse to perform CHILD Program work.

The Board agreed with the school board and BCPSEA that the dispute was properly dealt with as a strike, and not as a hot declaration. It ruled that the concerted refusal to apply for posted positions was an illegal strike It further found that the refusal by teachers on call to perform or continue to perform work in the CHILD Program was concerted and occurred at the instigation or insistence of the union. This also was an illegal strike.

Finally, it held that the “in dispute designation” itself was an unlawful declaration of a strike.

The Board made the following orders:

  • The BCTF is ordered to rescind the In-dispute esignation and to cease and desist from making any such further designation or declaration.
  • BCTF and WVTA must take all reasonable steps to communicate to all BCTF members that the In-dispute Designation and the refusal to perform the CHILD Program work were held by the Board to constitute an unlawful strike dclaration and strike under the Code.
  • BCTF shall take all reasonable steps to advise all BCTF members that the In-dispute Designation has been rescinded.
  • The WVTA is ordered to communicate forthwith the Board’s findings with respect to the unlawfulness of the refusal to perform the CHILD Program work by letter to its individual members.

Click here for full text of the decision)