Ontario Public Service Employees Union v. The Board of Education for the City of Toronto, 1983 CanLII 984

Ontario Public Service Employees Union v. The Board of Education for the City of Toronto

[1983] OLRB Rep. February 273

1803-82-R Ontario Public Service Employees Union, Applicant, v. The Board of Education for the City of Toronto, Respondent, v. The Federation of Women Teachers Associations of Ontario, Intervener #1, v. Ontario Secondary School Teachers' Federation District 15, Intervener #2, v. Canadian Union of Public Employees, Intervener #3, v. Ontario Public School Teachers' Federation, Intervener #4 v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members C. G. Bourne and B. L. Armstrong.

APPEARANCES: Chris G. Paliare, Pauline R. Seville and Ivor Oram for the applicant; D. W Brady, C. Wooding and R. Sprang for the respondent; Elizabeth J. Shilton Lennon for intervener #1; Maurice A. Green and David Clarke for intervener #2; no one appearing for intervener #3; Win. Markle for intervener #4; Barry Edson, Donna M. Aberle and Elaine Lichtenberg for the objectors.

DECISION OF THE BOARD; February 14, 1983

1This is an application for certification.

2The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act (also referred to in this decision as the "Act").

3The applicant seeks bargaining rights for a unit comprised of "all occasional teachers employed in the elementary and secondary panels of the Board of Education for the City of Toronto, at Toronto, Ontario". Section 2 of the Act provides in part as follows:

"This Act does not apply,

000

(f) to a teacher as defined in the School Boards and Teachers Collective Negotiations Act, except as provided in that Act ."

Section 1(m) of the School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c. 464 provides:

"In this Act,

000

'teacher' means a person,

(i) who holds a valid certificate of qualification as a teacher in an elementary or secondary school in Ontario,

(ii) who holds a letter of standing granted by the Minister under the Education Act,

(iii) in respect of whom the Minister has granted a letter of permission under the Education Act,

and who is employed by a board under a contract of employment as a teacher in the form of contract prescribed by the regulations under the Education Act, but does not include a supervisory officer as defined in the Education Act, an instructor in a teacher-training institution or a person employed to teach in a school for a period not exceeding one month".

The making of a written "contract of employment" of the type referred to in that provision is a mandatory requirement in respect of every "full-time or part-time teacher who is employed by a board [of education] and who is not an occasional teacher": see section 230 of the Education Act, R.S.O. 1980, c. 129. It is this statutory requirement which has given rise to the jargon by which teachers bound by such a contract are referred to as "contract" teachers and teachers not bound by such a contract are referred to as "non-contract" teachers.

4The Board's jurisdiction over the "occasional teachers" for whom the appli­cant seeks bargaining rights was not disputed by any of the parties. Having raised that matter with the parties and considered their submissions, the Board is satisfied that it has jurisdiction in this matter since the "occasional teachers" whom the applicant seeks to represent are not "contract" teachers. Thus, they are not "teachers" as defined in the School Boards and Teachers Collective Negotiations Act, and are not excluded from the coverage of the Labour Relations Act by section 2(1) (or any other provision) of the Labour Relations Act.

5The respondent submits that the bargaining unit proposed by the applicant is not appropriate for collective bargaining. In lieu of that unit, the respondent proposes the following bargaining units:

1. All occasional teachers in the elementary panel employed by the respondent in the City of Toronto save and except all long term occasional teachers.

2. All occasional teachers in the secondary panel employed by the respondent in the City of Toronto save and except all long term occasional teachers.

The respondent also proposes the following clarity note to each bargaining unit:

1. An "occasional teacher" is as defined in The Education Act,

R.S.O. 1980, c. 129, and amendments thereto.

2. A "long term occasional teacher" is a teacher employed to teach as a substitute for a permanent or probationary teacher who is absent for a period of twenty (20) or more consecutive instructional school days.

The definition of "occasional teacher" to which the proposed clarity note refers is contained in paragraph 31 of section 1(1) of the Education Act, which provides that "'occasional teacher' means a teacher employed to teach as a substitute for a permanent, probationary or temporary teacher who has died during the school year or who is absent from his regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year".

6Implicit in the respondent's bargaining unit proposals is the potential for two further units of occasional teachers, namely:

all long term occasional teachers in the elementary panel employed by the respondent in the City of Toronto, and

all long term occasional teachers in the secondary panel employed by the respondent in the City of Toronto.

Thus, in their oral submissions to the Board, counsel focused upon whether there should be one, two or four bargaining units in the present case.

7At the hearing of this matter on February 1, 1983, the parties' respective representatives indicated that they were content to have the Board determine the appropriate bargaining unit(s) on the basis of their representations and submissions, along with the exhibits filed with the Board by counsel for the respondent (on the consent of the parties), without the necessity of any other evidence being adduced.

8In support of his client's bargaining unit proposals, counsel for the respondent submitted that "long term occasionals" and "daily occasionals" (also referred to in this decision as "short term" occasionals) do not share a community of interest. It was his contention that whereas a short term occasional teacher is essentially looking after another teacher's programme during the latter's relatively brief period of absence, a long term occasional is, in effect, responsible for his (or her) own teaching pro­gramme, including lesson planning, and preparing report cards and tests. He also noted that long term occasionals have a better opportunity to familiarize themselves with the strengths and weaknesses of their students. There is also a difference in remuneration. All occasional teachers who have a university degree receive a fixed per diem rate when filling a short term vacancy, regardless of their experience or qualifications, and regardless of whether they are teaching at the elementary school or secondary school level. (There is also a separate elementary school per diem rate paid to occasionals who do not have a degree, for short term work.) However, once an occasional teacher falls within the definition of a "long term occasional teacher" by being employed to teach as a substitute for a permanent or probationary teacher she is absent for a period of twenty or more consecutive instructional school days, he is paid "the grid rate", i.e., the salary rate which his experience and qualifications would entitle him to receive if he were a "contract teacher" covered by the respondent's elementary panel collective agreement or the respondent's secondary panel collective agreement (as the case may be).

9Counsel for the respondent further noted that the twenty day cut-off point was not something invented by the respondent for purposes of this application. In support of that contention, he drew the Board's attention to Article 2.1.7.0.0 of the current collective agreement between the respondent and intervener #2, which, for purposes of determining the "salary step" to which a (contract) teacher's experience entitles him, provides that (as of September 1, 1975) "a Teacher who has taught for the [respondent] as a substitute for a Teacher for 20 consecutive instructional school days and who subsequently becomes employed under Contract with the [respondent] will be granted 1/10 of a year of Teaching Experience for each of such 20-day periods". That article also provides that the "Contract of a Teacher who has taught for the [respondent] as a substitute for a Teacher for 20 consecutive instructional school days immediately prior to entering into that Contract shall be deemed to have commenced on the initial day of the 20 consecutive instructional days." There is also a "general note" which follows a number of letters of understanding appended to that collective agreement, which provides: "It is the intention of the respondent to give surplus Teachers first consider­ation when hiring long term Occasional Teachers after meeting its obligations under Part VI [declining enrolment and surplus procedures] of the Agreement." The current collective agreement between the respondent and the "Branch Affiliates" represented by the Toronto Teachers' Federation (including intervener #4's "Toronto District") also contains a similar "deeming" provision (in Article 3.3.8.0.0). It was also undisputed that the "twenty or more" distinction is drawn not only the the seven Metropolitan Toronto boards of education but also by boards of education in many other parts of the Province. By way of example, counsel for the respondent filed with the Board a copy of a collective agreement between the applicant and the Brant County Board of Education that was negotiated after this Board (in File No. 1368-81-R) certified the applicant for the following bargaining unit which was agreed to by the parties to that application:

"all occasional teachers in the elementary panel employed by [the Brant County Board of Education] in the County of Brant, Ontario, save and except occasional teachers regularly employed for not more than twenty-four hours per week".

(Through negotiations, that bargaining unit was amended so as to include all occasional teachers in the elementary panel, by deleting the exclusion of "occasional teachers regularly employed for not more than twenty-four hours per week".) That collective agreement differentiates between "Casual Occasional Teachers" (who are "required to teach for a period that is less than twenty consecutive teaching days") and "Long Term Occasional Teachers" (who are "required to teach for a period of twenty or more consecutive teaching days") for purposes of remuneration and entitlement to certain benefits such as bereavement leave, absences for examinations and graduations, jury duty pay and payment for professional activity days.

10As a further indication of the extent to which the "twenty or more" distinction has been recognized within the Ontario educational context, counsel also filed with the Board excerpts from the June 1980 "Report of a Commission to Review the Collective Negotiation Process Between Teachers and School Boards" in which the Commission recommended that the School Boards and Teachers Collective Negotiations Act be amended to provide for inclusion of "occasional teachers" in the bargaining units for which "branch affiliates" of the "affiliates" defined in that Act hold bargaining rights. The Report (at page 47) described "occasional teachers" as "those who fill in for regular teachers for a maximum of twenty days in a school year". The Commission also recommends (at page 56 of its Report) that "there be several amended forms of teachers contracts" including a "Limited Term Teacher's Contract for qualified teachers engaged for a period of one month to twelve calendar months" and a "Supply Teacher's Letter of Appointment for qualified teachers engaged for a period of less than one month in any school year."

11Counsel for the respondent also drew the Board's attention to the fact that the respondent further differentiates between short term and long term occasionals in that it deals specifically with the latter in the context of approving "staff changes". For example, the Minutes of the November 25, 1982 meeting of the Toronto Board of Education indicate that the respondent confirmed at that meeting approximately one hundred assignments of "occasional teachers ... on a temporary basis" to various specified schools. Assignments of occasional teachers for less than twenty consecutive instructional school days are not made subject to such approval. Moreover, unlike short term occasionals, long term occasional teachers sign a standard form letter which informs them that their "employment as an occasional teacher for a temporary period" at a specified school for a specified term has been approved by the respondent (subject to presentation of professional certificates and certified statements of experience). (The letter also advises them that they will be given one week's notice in the event that their employment as an occasional teacher is to be terminated prior to the specified termination date for reasons other than misconduct, disobedience or neglect of duty.) Respondent's counsel also advised the Board that a distinction is drawn between long term occasionals and short term occasionals in the respondent's budget. He urged the Board not to apply "industrial" criteria in determining the bargaining unit appropriate­ness in this educational context. He also asked the Board to concentrate upon the occasional teachers' community of interest while employed in a particular panel on a short term or a long term basis, and to give less weight to their community of interest while in an "unemployed" pool awaiting further assignments.

12In support of his client's contention that occasional teachers employed in the respondent's elementary schools and occasional teachers employed in its secondary schools should be placed in separate bargaining units, counsel for the respondent noted that the provisions of the School Board and Teachers Collective Negotiations Act, recognize the distinction between secondary school teachers (who have for the most part traditionally been represented by branch affiliates of The Ontario Secondary School Teachers' Federation) and elementary school teachers (who have traditionally been represented by branch affiliates of the other four "affiliates" listed in section 1(a) of that Act) for collective bargaining purposes. It was his contention that this dichotomy is based upon sound educational and labour relations considerations which also apply in the context of occasional teachers. In support of that contention, he argued that teaching in an elementary school is different than teaching in a secondary school in that elementary school teachers tend to be generalists responsible for educating the "whole child", while secondary school teachers tend to be specialists, responsible for instilling knowledge about a specific subject area. Counsel stressed the departmental organization of the respondent's secondary schools with its emphasis on department heads and other departmental positions of responsibility. He contrasted secondary schools, in which the department head provides "the first line of senior teacher supervision", with the elementary schools, in which "the senior teacher is the principal or the vice-principal". Counsel also informed the Board that in the secondary schools, it is the department head who telephones occasional teachers in order to fill a temporary vacancy, while in the elementary schools; it is the school secretary who makes such calls. Unlike the city-wide list of occasional teachers qualified to teach in the secondary schools, occasional teachers qualified to teach in the elementary schools are listed in twelve distinct geographic areas (with the exception of occasional teachers qualified to teach Special Education and French at the elementary school level, who are listed on a single, city-wide list). Of the 1,567 persons whom the respondent identifies as occasional teachers in its employ on the date of this application, about 340 have indicated to the respondent that they are qualified and available to teach in both elementary and secondary schools. However, the number of such persons who are actually offered and accept opportunities to teach in both panels appears to be quite limited. Counsel for the respondent also referred the Board to the provisions of the aforementioned "elementary" and "secondary" collective agreements which, he submit­ted, indicate different priorities.

13In their interventions filed with the Board in this matter and in their oral submissions to the Board at the hearing, representatives of the various interveners submitted that any certificate(s) issued by the Board in this application should be made subject to the collective agreements in force between the various interveners and the respondent. While none of those representatives took any position concerning the issue of whether there should be more than one bargaining unit, some concern was expressed about possible "anomalies" such as "contract" teachers on leave of absence who work as "occasional teachers" during their leave, contract teachers who have been declared surplus and terminated but who may have rights (under a collective agreement) to be given first consideration by the respondent when it is hiring long term occasional teachers, and teachers who work as contract teachers on apart-time basis during the morning but work as occasional teachers in the afternoon.

14In recognition of the bargaining rights presently held by other grade unions, counsel for the applicant agreed to amend the description of the bargaining unit requested by his client so as to exclude "persons covered by subsisting collective agreements" in accordance with the Board's normal practice in such matters. Although counsel for intervener #2 requested the Board to expressly make any certificate granted by it in this matter subject to the subsisting collective agreement in force between his client and the respondent "and the rights flowing from it", we are not prepared to accede to that request. It appears to us that the legitimate interests of each of the interveners will be adequately protected by the exclusion of "persons covered by subsisting collective agreements", and that the addition of the further phrase proposed by Mr. Green could add an unnecessary element of possible confusion with respect to the scope of that exclusion. It further appears to us that the rights, if any, of persons who fall within "anomalous" situations such as those described above, are matters to be determined in other proceedings such as arbitration, and not by this Board in the context of the present application.

15Mr. Edson addressed the Board as counsel for Linda Campbell, one of the objectors. (In her statement of desire to make representations in opposition to this application, Ms. Campbell, who is included on the respondent's list of employees in the proposed bargaining unit, identified herself as the President of the Metropolitan Association of Supply Teachers (Toronto Branch). There was no evidence before the Board concerning the status of that Association or concerning the number of occasional teachers whom it purports to represent.) Counsel for Ms. Campbell (whose status as an individual objector was not disputed by the applicant or any of the other parties) was opposed to the concept of separate bargaining units for short term and long term occasional teachers. He noted that it "depends largely on the luck of the draw" whether an occasional teacher is called to fill a short term or a long term vacancy. He also noted that there is a substantial degree of "movement back and forth" ; an occasional teacher may replace one teacher for a day or two and may then (or after several more short term assignments) teach for twenty or more days in another assignment, followed by other assignments of varying lengths. He submitted that in view of that interchange, it is important not to have the "twenty or more" split advocated by the respondent. Mr. Edson advised the Board that his client was taking no position concerning whether there should be separate elementary and secondary bargaining units. The two other individual objectors who entered appearances were provided with an opportunity to address the Board with respect to the issue of bargaining unit description but declined to do so.

16In opposing the respondent's request for separate bargaining units for long term and short term occasional teachers, counsel for the applicant noted that while the aforementioned Brant County Board of Education collective agreement distinguishes between those two groups for certain purposes, it nevertheless includes them both in a single bargaining unit. He further submitted that, in reality, there is not one distinct group of "daily" occasionals and a separate group of "long term" occasionals, but rather a "spectrum" ranging from single day assignments to assignments for a full school year minus one day, with each occasional teacher fitting somewhere on the spectrum at any given moment of time. He also submitted that the activities attributed exclusively to long term occasionals by counsel for the respondent, such as planning lessons and administering tests, do not "magically" begin to be performed by an occasional after nineteen days in a particular classroom, but rather begin to be performed after the first few days, and gradually expand as the absence continues. Counsel emphasized the "luck of the draw" aspect which determines whether an occasional teacher will, at any particular instant, be replacing a contract teacher who is absent for a period of twenty or more consecutive instructional school days, be replacing a teacher for a shorter period, or be at home awaiting a call for an assignment. He noted that an occasional teacher who completes a long term assignment does not necessarily receive another long term assignment; depending upon various contingencies such as the types of absences occurring among contract teachers, the occasional teacher may receive another long term assignment or may instead receive one or more short term assignments of varying lengths, or may have a period of unemployment. He also observed that an assignment to replace a contract teacher who has taken ill may commence as a relatively short assignment, but may become more prolonged if the contract teacher does not recover as quickly as expected, or if it turns out that the illness is more serious than originally anticipated. Counsel further submitted that the excessive fragmentation which would result from the bargaining unit configuration proposed by the respondent would be undesirable and would not serve any valid labour relations purpose. He noted that a substantial number of the occasional teachers affected by this application are qualified to teach in both panels. He also relied on the fact that there is some interchange of occasional teachers between the respondent's elementary schools and its secondary schools. Moreover, he submitted that the nature of the work performed by occasionals in the elementary schools and the secondary schools is identical (namely, replacing an absent teacher), as are the requisite teaching skills. With respect to centralized personnel functions, he noted that all occasional teachers receive a computerized paycheque from the respondent's head office, and that a single paycheque is issued to cover work performed by an occasional teacher during a pay period, regardless of whether that work was performed in the elementary panel, the secondary panel, or both. Counsel further noted that the same standard form letter is used by the respondent to confirm long term occasional assignments in the elementary panel and the secondary panel.

17Counsel for the applicant submitted that the creation of four bargaining units in this context would create organizational difficulties for a union seeking to organize occasional teachers, as organizers would have no way of knowing with any degree of certainty which occasionals to approach to organize a particular bargaining unit. He also submitted that the existence of four separate bargaining units could create unnecessary difficulties in respect of seniority rights, and urged the Board to take into account the desires of the employees as evidenced by their support for the applicant and the single bargaining unit which it seeks. It was also his position that the Matthews Commission Report does not assist the Board in resolving the issues before it, since the recommendations contained in the portion of the Report to which counsel for the respondent referred the Board have not been implemented by the legislature.

18The power and obligation to determine "the unit of employees that is appropriate for collective bargaining" is conferred on the Board by section 6(1) of the Act. In exercising its discretion under that provision, the Board takes into account a variety of labour relations policy considerations and statutory objectives. See, for example, K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, in which the Board wrote:

"7. The Board is given a broad discretion under section 6(1) of the Act to determine the appropriate bargaining unit in all certifica­tion applications brought before it. The Board's determination in this regard establishes the constituency within which a trade union must demonstrate majority support in order to become certified and, in addition, sets the initial parameters within which bargaining will take place if certification is granted. The establishment of the constituency is of direct concern to the parties at the time of certification in that this decision is often determinative of whether a union has support within the bargaining unit sufficient to be certified. Trade unions generally find it easier to organize a homogeneous, centralized group of employees, and, therefore, will often argue for a narrowly defined unit. Employers, recognizing that a union will have greater difficulty organizing on a wider basis, and recognizing further that it may be administratively easier to bargain on a broader basis, often take the opposite track. (See re McDonald's Restaurants of Canada Limited, [1974] OLRB Rep. Oct. 755, Ponderosa Steak House (A Division of Foodex Systems Lim­ited), [1975] OLRB Rep. Jan. 7, Commonwealth Holiday Inns of Canada Ltd., [1970] OLRB Rep. Oct. 749 and Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330). However, where the union has sufficient support to warrant certification for a broader constituency it will argue for a broader unit in the hope of augmenting the strength from which it will seek to bargain. In these circumstances employers will be predisposed to seek a narrowing of the Union's bargaining rights. (See, Goodyear Service Stores 65 CLLC 16,018, Cybermedix Ltd., [1974] OLRB Rep. Aug. 743 and Adams Furniture Co. Ltd., [1975] OLRB Rep. June 491). One case is especially illustrative of the pragmatic considerations which govern the parties in their approach to bargaining unit determina­tions. In York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, the union, which was seeking a pre-hearing vote, asked for a single plant unit while the respondent asked for a unit encompassing both its plants within the municipality. Before entertaining submis­sions with respect to the bargaining unit the Board conducted the pre-hearing vote but segregated the ballots from each plant. If the union failed to win a sufficient majority in the larger plant the application would fail and so the ballots cast by employees at the larger plant were counted. When it became known that the ballots cast by these employees gave the union a sufficiently wide majority that it was assured of obtaining bargaining rights for both plants, regardless of how the employees at the smaller plant voted, the parties reversed their positions with respect to the scope of the appropriate bargaining unit.

8. Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade unions to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determin­ing the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case...

19It is the Board's normal practice (in non-construction industry cases) to circumscribe the geographic scope of a bargaining unit by reference to the municipal boundary within which the employer operates. Where, as in the present case, the employer operates at two or more locations within a municipality, the Board's general practice is to describe a separate bargaining unit for each location unless the integrated nature of the operations or the community of interest of the employees at the different locations is such as to justify grouping the employees at the various locations into a single bargaining unit (see Town of Meaford, [1980] OLRB Rep. Nov. 1611, at paragraph 4). The Board generally determines the appropriateness of a unit which includes employees at more than one of the employer's locations in a single municipal­ity by considering four fundamental criteria: (1) community of interest of the employees, (2) centralization of managerial authority, (3) economic factors, and (4) source of the work (see, for example, Magna International Inc., [1981] OLRB Rep. Sept., 1260; K Mart Canada Limited, supra; and the leading case of Usarco Ltd., [19671 OLRB Rep. Sept. 526). The criterion of community of interest has been further subdivided to include the nature of the work performed, the conditions of employment, the skills of employees, administration, geographic circumstances and interdependence. However, as noted by the Board in Town of Meaford, supra, in certain situations the Board has concluded that its general practice as set forth above should not be followed, since to do so would result in the creation of a number of artificially small bargaining units and unduly fragmented bargaining structures. Thus, for example, when dealing with municipalities as employers, the Board generally issues certificates for separate units of office staff and non-office staff on a municipal wide basis notwithstanding the fact that municipal employees may work at or out of a number of different locations (see The Corporation of the Town of Orangeville, [1981] OLRB Rep. Dec. 1817; The Corporation of the Township of Valley East, [1970] OLRB Rep. Jan. 1213; and The Corporation of the Township of Markham, [1969] OLRB Rep. Aug 592.) Similarly, employees working at various locations for the same county or regional school board have been included in the same bargaining unit (see The Cochrane-Iroquois Falls Board of Education, [1961] OLRB Rep. June 368). There is an implicit recognition of the validity of that approach in each of the bargaining unit descriptions proposed by the various parties to the present application. None of the parties contends that there should be a separate bargaining unit for each of the many schools operated by the respondent. Rather, the parameters of the dispute are confined to whether all of the occasional teachers who teach at any of the respondent's schools should be included in a common bargaining unit, or whether they should be subdivided on the basis of whether they teach in the respondent's elementary schools or its secondary schools (and further subdivided on the basis of the length of absence of the contract teacher whom they are replacing).

20In recognition of the fact that employees who work substantially fewer hours than full-time employees do not generally share a community of interest with the latter group, the Board has generally excluded part-time employees from full-time bargaining units and placed them in a separate unit at the request of the union or the employer (see Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, and Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330, for a discussion of the policy considerations which underlie that approach). However, the practice of the Board has been against making distinctions between employees based upon the (actual or probable) duration of their employment with an employer (with the exception of "seasonal" employees in certain industries such as the canning industry and the tobacco industry). Thus, the Board has generally declined to distinguish between permanent and temporary (or "casual") employees, and has generally included them in a common bargaining unit (see, for example, Filkon Food Services, [1981] OLRB Rep. Dec. 1771, application for reconsideration dismissed, 111981] OLRB Rep. Dec. 1771; Board of Education for the Borough of Scarborough, supra; and Spramotor Ltd., [1976] OLRB Rep. May 215). Similarly, we are not persuaded in the context of the instant case that we should distinguish between "long term" and "daily" occasional teachers for purposes of bargaining unit description. The occasional teachers who fill absences of both durations are drawn from the same pool (or pools). Thus, there is a substantial amount of interchange between the two. Indeed, it may be impossible to determine at the time an occasional teacher accepts a call to substitute for an absent contract teacher whether the absence will be short term or long term. Placing such teachers in separate bargaining units might well create unnecessary difficulties concerning such matters as seniority and access to employment opportunities. Indeed, it could create difficulties somewhat akin to 'jurisdictional disputes", among occasional teachers who presently appear to share relatively unimpeded access to long term and short term employment opportunities with the respondent. The respondent's organized work force is already split into sixteen bargaining units, including the aforementioned units of elementary (contract) teachers and secondary (contract) teachers (plus several other groups of employees represented by uncertified associations). To add four more bargaining units to that already large group would be to give the Board's approval to what can only be described as an undue proliferation of bargaining units. The Board's legitimate concern about undue fragmentation of an employer's work force is well established in its jurisprudence (see, for example, The Board of Education for the City of North York, [19821 OLRB Rep. June 918; Charterways Transportation Limited, 11982] OLRB Rep. May 659; and Town of Meaford, supra.) Having regard to the submissions of the parties and the Board's bargaining unit jurisprudence, we are of the view that the degree of fragmentation sought by the respondent through bifurcation of occasional teachers into short term and long term groups for purposes of collective bargaining would not be conducive to stable labour relations and is not warranted by the facts. If the parties find it necessary or desirable to continue to distinguish between long term and short term occasional teacher assignments for purposes of remuneration or other terms and conditions of employment, such distinctions can readily be incorporated into a single collective agreement as has been done in the aforementioned collective agreement between the applicant and the Brant County Board of Education.

21While similar considerations provide considerable support for the applicant's contention that there should be a single bargaining unit for all of the respondent's occasional teachers, we are of the view that other relevant factors are present which make separate elementary and secondary panel bargaining units appropriate in the circumstances of this case. The historical dichotomy between elementary school teachers and secondary school teachers is reflected in the special legislation which governs collective negotiations between boards of education and "contract" teachers (i.e., the School Boards and Teachers Collective Negotiations Act). Their separate communities of interest also find expression in their distinct bargaining priorities, as reflected in the somewhat diverse provisions contained in the collective agreements between the respondents and the respective branch affiliates who represent the respondent's elementary and secondary panel (contract) teachers. The provisions of those agreements mirror some of the distinctions between secondary schools, with their emphasis upon departmentalized, subject orientation with the concomitant emphasis upon positions of responsibility within the various departments, and elementary schools with their disparate emphases as described by counsel for the respondent (and set forth earlier in this decision). Defining separate bargaining units for the respond­ent's elementary and secondary panel occasional teachers is consistent with the Board's practice of describing bargaining units of part-time employees (who are somewhat analogous to the employees affected by this application) in a fashion which mirrors the description of their full-time counterparts. Although some of the respondent's occa­sional teachers are qualified to teach not only some grades at the elementary school level, but also some grades at the secondary school level, it appears that the actual interchange of occasional teachers between the two panels is quite limited, and could, in any event, be accommodated by appropriate collective agreement language within the context of separate bargaining units. Moreover, the fact that the overwhelming majority of the respondent's occasional teachers are qualified to teach in only one of the two panels underlines the fact that the qualifications required for teaching various subjects at the secondary school level differ from those required for teaching at the elementary school level (see Regulations 262 and 269 (as amended) made under the Education Act). Those differences are also reflected to some extent in the lower per diem rate which is paid to short term occasional teachers who teach in the elementary panel without a university degree. As noted above, remuneration paid to long term occasional teachers also varies between the two panels, since it is based upon the "grid" rates set forth in the respondent's aforementioned respective elementary and secondary panel collective agreements. It is also appropriate to note that the creation of separate elementary and secondary panel bargaining units for occasional teachers would not tend to impede trade union organizational activities. Indeed, it might well facilitate such activities by permitting a trade union to concentrate its initial organizational efforts on a single panel.

22For the foregoing reasons, the Board, in the exercise of its discretion under section 6(1) of the Act, finds that all occasional teachers employed by the respondent in its elementary panel in the City of Toronto, save and except persons covered by subsisting collective agreements, constitute a unit of employees of the respondent appropriate for collective bargaining. The Board further finds that all occasional teachers employed by the respondent in its secondary panel in the City of Toronto, save and except persons covered by subsisting collective agreements, constitute a unit of employees of the respondent appropriate for collective bargaining. For the purposes of clarity, the Board notes that "occasional teacher" means a teacher employed as a substitute for a permanent, probationary or temporary teacher who has died during the school year or who is absent from his regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year, and does not include any teacher who is employed under a contract of employment in the form prescribed by the regulations under the Education Act.

23The Board also heard the submissions of the parties concerning the approach which should be applied in determining the number of employees in the bargaining units at the time this application was made. The Board is charged with the responsibil­ity of making that determination under section 7(1) of the Act, which provides:

"Upon an application for certification, the Board shall ascer­tain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j)."

In Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840, the Board described its general practice (in applications for certification other than those filed under the "Construction Industry" provisions of the Act) with respect to determining the number of employees in a bargaining unit at the time the application was made (sometimes referred to as the "unit time") as follows:

"14. Although the unit time is determined by the provisions of section 7(1), nothing is said in that section or elsewhere in the Act concerning the method or criteria to be used by the Board in ascertaining the number of employees in the bargaining units at the material time. The determination as to whether a person is or is not to be numbered as an employee on the date of application is, therefore, left entirely to the discretion of the Board. To ensure consistency and order in its proceedings and with a view to the purely practical difficulties involved, the Board has adopted certain practices and rules of thumb applicable to the various situations which commonly arise in the employer-employee relationships.

15. As an assistance to the Board in arriving at a decision with respect to the number of persons in the bargaining unit, the employer is asked to file with the Board schedules listing its employees. The schedules form part of the reply required under section 7 of the Board's Rules of Procedure....

16. It is convenient to deal with the schedules now in reverse order. The rule of thumb applicable to Schedule "D" is that the Board, at the hearing, determines if the persons named thereon have worked within the month immediately preceding the date of applica­tion and have either returned to work within the month immediately following the date of application or are expected to so do. If these conditions prevail the employee concerned is considered by the Board to be an employee for the purpose of the unit count. If all are not fulfilled he is not numbered in the unit count.

17. Where an employee is listed on Schedule "C", he is found to be an employee for the purpose of the unit count if he worked at any time during the month immediately preceding the date of application and is to be recalled or has been recalled within the month immediately following the date of the application. Again, unless both conditions are met, such a person is not counted in the unit (Bertrand & Frere Construction Co. Limited Case, File No. 10347-65-R). . .

24Thus, to be included as an employee in the bargaining unit for the purposes of the count, a person who was not at work on the date of the application must generally have been at work at some time during the one month period prior to the application date and have returned to work (or have been expected to return to work) within the one month period following the application date. (See also Brewers Nursing Home, [1981] OLRB Rep. July 852; Irwin Toy Limited, [19701 OLRB Rep. Dec. 912; Keynorth Limited, [19701 OLRB Rep. July 477; Mobile Cartage and Distributors Ltd., [19681 OLRB Rep. Nov. 814; and West Elgin District High School Board, [19681 OLRB Rep. July 379.) This longstanding practice of the Board enables the parties to ascertain in advance of the hearing the persons who will be included for purposes of the count (see Sydenham District Hospital, 11967] OLRB Rep. May 135). A further reason for the existence of the practice is that it tends to exclude from the count persons who have not been at work during the trade union's organizing campaign and have not had an opportunity to express their support for or opposition to the trade union (see Bertrand & Frere Construction Co. Limited, [1965] OLRB Rep. July 292). See also Sherman Sand and Gravel Ltd., [1978] OLRB Rep. May 460, in which the Board wrote (at paragraph 24):

"... [the thirty day] rule applies generally to all applications from outside the construction industry. In order to meet the requirements of this rule an employee must be at work both some time in the period thirty days prior to the date of the filing of the application and be at work, or expected to be at work, some time in the period thirty days after the date of application. These requirements take into account two concerns — that union and employers be able to identify the constituency of employees that will be used by the Board when assessing the degree of membership support enjoyed by an applicant; that some employees who are not at work at the date of the application may still have a sufficiently substantial employ­ment attachment to justify inclusion in the employee constituency and a voice in the selection of the bargaining agent. The application of this rule results in what the Board considers to be the best balance between these two competing concerns. A heavy onus, therefore, rests upon any party seeking an exemption from this rule ."

(In that case, which involved an application in respect of certain "dependent contrac­tors", the Board declined to deviate from the thirty day rule.)

25Counsel for the respondent and counsel for Ms. Campbell submitted that the Board should not apply its "thirty day rule" in the present case. It was their position that everyone on the list of occasional teachers filed with the Board by the respondent should be included for purposes of the count regardless of whether or not they had actually taught on the date of the application (December 17, 1982) or within a month before and after that date. Counsel explained that the respondent's lists of occasional teachers are updated annually by sending out cards in the spring to all of the occasional teachers on those lists, with a request that they return to the respondent by September a portion of the (perforated) card if they wish to continue to be on a list from which the respondent fills its needs for occasional teachers. Further names are also added to those lists from time to time when qualified newcomers advise the respondent of their interest in working as occasional teachers. Thus, the list filed with the Board contains not only the names of persons who have worked for the respondent as occasional teachers at some time in the past, but also the names of persons who have merely applied for such work but have not as yet received any occasional teaching assignments from the respondent. In the alternative, counsel submitted that any occasional teacher who has taught for the respondent at any time on or before the date of this application during the 1982-83 academic year should be included as an employee for purposes of the count in this application so as not to "disenfranchise" any of the respondent's occasional teachers. In support of the respondent's position, counsel for Ms. Campbell noted that occasional teachers have a "fluid" employment relationship with "no guarantees of hours or days per week".

26Counsel for the applicant, on the other hand, submitted that the Board should not deviate from its normal practice in determining the number of employees in the bargaining unit at the time of the application. He noted that the list filed by the respondent would include persons who, after sending in cards to have their names retained on the list, had become unable or unwilling to accept occasional teaching assignments. He further noted that it contains the names of persons who have applied for work as occasional teachers but have not yet been hired by the respondent to perform any such work. He questioned how a union seeking to organize such persons could possibly know which individuals to approach in view of the non-availability of the respondent's list, and in view of the fact that some of the persons in question would not have been working in any of the respondent's schools at any time during the applicant's organizing campaign so as to alert the organizers as to their existence. Counsel emphasized the relative certainty which the thirty day rule provides for all concerned parties. He also submitted that it is legitimate to apply that rule in the present context since there is a substantial group of occasional teachers who work for the respondent on a fairly regular basis.

27Board practices such as the "seven week rule" (described in Westgate Nursing Home Inc., [1981] OLRB Rep. April 503), and the "thirty day rule" described above, are guidelines, not "hard and fast" rules. However, since such guidelines are known, accepted and relied on by unions and employers alike, there is a substantial onus on any party requesting the Board to depart from such practices (see Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116, and Sherman Sand and Gravel Ltd., supra). In the circumstances of the instant case, the Board does not find it appropriate to depart from its normal practice of applying the thirty day rule. Although the employment pattern for at least some of the respondent's occasional teachers is more sporadic than that of other persons employed by the respondent such as its "contract" teachers, we are nevertheless of the view that, in the context of the present case, the thirty day rule provides an appropriate balance between the legitimate interest of employees (not at work on the date of the application but nevertheless having a substantial employment nexus with the respondent) in having a voice in the selection or rejection of the applicant as bargaining agent, and the legitimate interest of the applicant and the other parties in knowing with a reasonable degree of certainty which persons will be included by the Board as employees for purposes of the count. The alternative approaches advocated by Mr. Brady and Mr. Edson would include as employees for purposes of the count a number of persons with little or no connection with the respondent's active work force of occasional teachers. Such persons would not have been identifiable by organizers seeking to contact "bargaining unit" employees in an effort to persuade them to join the applicant and support its certification. Similarly, they could not have been identified or contacted by objectors wishing to organize opposition to this application. Finally, it may be noted that any potential difficulty that might have arisen in applying the second branch of the thirty day rule in the context of this application has been eliminated by the fact that more than thirty days have now passed since the date of the application. Thus, the respondent is in a position to specify with complete precision the occasional teachers who were not at work on December 17, 1982, but who were at work at some time within 30 days thereafter.

28For the foregoing reasons, the Board will apply its normal thirty day rule in determining the number of employees in the bargaining units at the time the application was made. Since the aforementioned list of employees filed with the Board by the respondent does not comply with the Board's requirements and does not include some of the information necessary for the Board to apply the thirty day rule, the Board hereby directs the respondent to file with the Board forthwith a separate list of employees for each of the two bargaining units (found to be appropriate for collective bargaining earlier in this decision), including (in respect of each such list) separate schedules of employees at work on the date of the application and employees not at work on the date of the application. The latter schedules are to specify (for each person included on that schedule) the last day worked, reason for absence and actual date of return to work (if any).

29The matter is referred to the Registrar to be scheduled for continuation of hearing.