[1984] OLRB Rep. July 989
0731-84-R Ontario Public Service Employees Union, Applicant, v. The Board of Education for the City of North York, Respondent, v. Ontario Secondary School Teachers' Federation, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members B.L. Armstrong and I.M. Stamp.
DECISION OF THE BOARD; July 6, 1984
This is an application for certification in which the applicant union has requested that a pre-hearing vote be taken.
Pursuant to section 10 of the Board's Rules of Procedure, the intervener has filed with the Board in timely fashion an intervener's application for certification (Form 13). The intervener has also requested that a pre-hearing vote be taken. Under the circumstances, the Board is satisfied that this is an appropriate case in which to exercise its discretion under section 103(3)(a) of the Act to treat the intervener's application for certification as having been made on June 13, 1984, which is the date on which the applicant made its application for certification.
The parties have met and agreed that the voting constituency and the unit of employees appropriate for collective bargaining in this case should be described as follows:
All occasional teachers employed by the respondent in its secondary school panel in the City of North York, save and except persons covered by subsisting collective agreements.
Clarity Note: For the purpose of clarity, the term "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 it 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.
While the parties agree on the bargaining unit description, they disagree on the identity of the individuals who fell within its scope on the date the application was made. While they agree that occasional teachers at work on that date would be included, they disagree on the test to be applied to the occasional teachers not at work on that date to determine which of them, if any, would nevertheless be considered to be "employees" of the respondent as of that date. They raise a serious question whether the Board should adopt some test other than the "thirty-thirty" rule ordinarily applied by the Board to determine employment relationships for the purpose of a count outside of the construction industry. In addition to this disagreement over the means of ascertaining who was an "employee" on the application date, the applicant and intervener each challenge the correctness of information supplied by the respondent with respect to the dates of its employment of certain persons as occasional teachers.
The respondent submits that any vote ordered by the Board should be deferred to a date after the commencement of the new school year in September, 1984. This submission is based on the fact that all classes and examinations for students attending the respondent's secondary schools ended June 21, 1984, and that it is the practice of the respondent not to call upon the services of occasional teachers until classes recommence in September of the new school year. In the circumstances, the respondent says that a low voter turn out might be anticipated and suggests that these and other grounds are sufficient to lead the Board to defer the vote. The applicant and intervener opposed a delay of the vote, which could be held on July 17th unless the Board otherwise directs. If a vote is held in July, the parties agree that notice of the vote should be given by mail to all those who may be eligible, and the respondent will provide the names and addresses that the Board requires in that regard.
The purpose of the pre-hearing vote procedure is to test the question of representation as quickly as possible after the application date. This avoids the prejudice which inevitably occurs when the conduct of a representation vote must await the determination of factual and legal issues which can only be resolved after a hearing in which each of the affected parties can participate. Often those disputed issues include the appropriate description of the bargaining unit, voter eligibility and employee status of challenged individuals. If the existence of such disputes could stand in the way of a pre-hearing vote, the procedure's efficacy would be destroyed. That is why the Legislature required only that the Board strike a voting constituency and prescribed as the vote prerequisite only that the applicant have the appearance of the requisite support within the voting constituency. (See generally Emery Industries Limited, [1980] OLRB Rep. March 316 at paragraphs 5,6 and 7.) Where determination of the actual prerequisite level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union's position on the matters in dispute is correct. A pre-hearing vote is normally directed if, on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However, the results of a pre-hearing vote are of no effect unless it is later demonstrated that not less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will normally defer counting any ballots until it can resolve those issues which bear on the propriety of counting all, or any, of the ballots.
As access to the pre-hearing vote procedure is a function of the matters of fact and law put in issue by the parties, there is a risk that frivolous allegations and arguments may be made. The same risk exists whenever entitlement to launch and prosecute proceedings depends only on the assertion of a prima facie case. However, a trade union which gains access to the process by asserting unfounded and frivolous allegations and arguments only does itself harm. If it cannot ultimately demonstrate that it had the requisite support, it will never know how many ballots were cast in its favour, because unless the requisites of subsection 9(4) are met, there will be no reason to unseal the ballot box. The application having been pressed past the meeting with the officer, dismissal of the application will normally carry with it a bar imposed under section 103(2)(i). If it becomes apparent to the Board that the assertions which led to the vote were frivolous when made, then the Board may take that into account in determining the length of the bar.
Upon an examination of the records of the applicant and the respondent, assuming that the applicant's position on the matters in dispute is correct, it appears to the Board that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made.
Upon an examination of the records of the intervener and the respondent, assuming that the intervener's position on the matters in dispute is correct, it appears to the Board that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the intervener at the time the application was made.
The Board therefore directs that a pre-hearing representation vote be taken of the employees of the respondent in the voting constituency described in paragraph 4 of this decision.
The vote hereby directed will not be delayed until September, 1984. It is to be conducted as soon as administratively practicable, consistent with the arrangements discussed between the parties and the Labour Relations Officer assigned to this matter. The propriety of conducting a representation vote of occasional teachers during the summer months is a matter which can only be determined at a hearing at which all of the parties have the opportunity to lead evidence and make representations. Just as with disputes over bargaining unit descriptions and voter eligibility, any delay of the vote pending resolution of this issue would be inconsistent with the purpose of the pre-hearing vote procedure. Having regard to the existence of that issue, however, as well as the other matters in dispute, and in order to ensure that none of the parties is prejudiced, the Board directs that all ballots cast be segregated and the ballot box sealed, pending further direction of the Board.
All of the employees of the respondent in the voting constituency on June 13, 1984, who have not voluntarily terminated their employment or who have not been discharged for cause between that date and the date of the vote will be eligible to cast ballots.
Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener or neither union in their employment relations with the respondent.
The matter is referred to the Registrar.