Ontario Secondary School Teachers' Federation v. The Board of Education for the City of York
[1984] OLRB Rep. January 160
2917-83-R Ontario Secondary School Teachers' Federation, Applicant, v. The Board of Education for the City of York, Respondent
BEFORE: Owen V. Gray, Vice-Chairman and Board Members W. G. Donnelly and B. L. Armstrong.
APPEARANCES: George Surdykowski, Marlene E. Miller and Fred W Birket for the applicant; Paul Jarvis, Paul Martindale, Norman Ahmet and Ian Baker for the respondent.
DECISION OF THE BOARD; January 19, 1984
- This is an application for certification. The respondent seeks bargaining rights under the Labour Relations Act with respect to a bargaining unit defined as follows:
"All teachers employed by the respondent at Humewood House School, 40 Humewood Drive, in the Municipality of Metropolitan Toronto."
At the initial hearing in this matter, the respondent objected to the applicant's status to apply for certification under the Labour Relations Act ("the LRA"). The respondent argued that the applicant is not a "trade union" because it has as members, and presumably was founded by, persons to whom the LRA does not apply by virtue of section 2(f) of that Act, which reads as follows:
This Act does not apply,
(f) to a teacher as defined in the School Boards and Teachers Collective Negotiations Act, except as provided in that Act.
The respondent further argues that the School Boards and Teachers Collective Negotiations Act ("the SBTCNA") provides that principals and vice-principals of schools are to be members of and included in bargaining units represented by branch affiliates of OSSTF in bargaining under that Act. The respondent says that principals and vice-principals exercise managerial functions and are employed in a confidential capacity in matters relating to labour relations within the meaning of section l(3)(b) of the LRA. Where such persons are included in the membership of an association, the jurisprudence of this Board is said to preclude a finding that such an association is a "trade union" within the meaning of section l(l)(p) of the LRA. The "managerial" character of a principal's duties would come clear, we were told, from a review of the SBTCNA, The Education Act, R.S.O. 1980 c. 129, as amended, and Regulations thereunder.
In The Board of Education for the Borough of Scarborough, [1983] OLRB Rep. Nov. 1889, the Board found that the OSSTF was a "trade union" within the meaning of section l(l)(p) of the LRA. The parties to that proceeding, however, had agreed that principals are "employees" within the meaning of the Labour Relations Act; the panel of the Board which decided that case heard no argument that principals and vice-principals exercise managerial functions" within the meaning of section l(3)(b) of the Act. The respondent in this case therefore argued that it was open to the Board to reconsider the matter of the applicant's status and, further, that the onus fell on the applicant to prove it had that status. On that issue, the Board ruled that section 105 of the LRA was applicable, with the result that the burden of disproving the applicant's status fell on the respondent.
Although we heard argument from both parties with respect to these issues, neither party cited any authorities other than those referred to in the Scarborough Board of Education case referred to above. Neither counsel cited or reviewed any authorities establishing or limiting any of the propositions advanced by either of them, save as just indicated. Counsel were unable to provide the Board with statutory references at the time of the hearing; these were filed later by mail.
Counsel for the respondent declined the opportunity to call any evidence on this issue. Counsel for both parties did agree on the fact that in the City of York, principals participate on the respondent’s negotiating committee when it deals with trade unions other than the OSSTF in bargaining and dealing with teacher's aids, secretaries and other non-teachers.
At the conclusion of the argument on status, the Board asked how it was that the "teachers" who are the subject of this application were not covered by the SBTCNA. This question was prompted, in part, by the following reference in paragraph 7 of the application for certification:
The teachers covered by this application have been found by a Board of Arbitration composed of Ross Kennedy, Jack Baker and Douglas Knoww (dissenting) not to be covered by the subsisting collective agreement between the OSSTF District 14 and the Respondent, entered pursuant to the School Boards and Teachers Collective Negotiations Act.
Counsel for both parties agreed that the employees covered by this application are not "teachers" within the meaning of the SBTCNA. We were told that these employees teach in a program established under section 15 of the "General Legislative Grants" regulation made under The Education Act (currently 0. Reg. 221/83). The parties said that these teachers therefore do not possess all the attributes required by the definition of "teacher" in the SBTCNA.
The Ontario Labour Relations Board has no jurisdiction to entertain this certification application if the employees for whom the applicants seeks bargaining rights are "teachers" within the meaning of the SBTCNA. The agreement of the parties cannot give us a jurisdiction which we do not otherwise have. The applicant's agreement that these are not "teachers" within the meaning of the SBTCNA may be the practical consequence of a binding arbitration decision to that effect. We are not bound by the Kennedy award, nor does that award give us a jurisdiction which we do not otherwise have. Having now had an opportunity to review the statutes, regulations and authorities referred to in argument, as well as other authorities in the area, we are in doubt whether we have jurisdiction to entertain this application, having regard to section 2(f) of the LRA. We require the further assistance of the parties, upon whom we will have to rely to provide us with the factual foundation necessary to make our own judgement with respect to this issue.
If the Board does have jurisdiction, it is concerned whether it has sufficient information to determine the appropriateness of the bargaining unit proposed by the applicant and the respondent. We have no evidence before us whether the "teachers" at Humewood House are the only "teachers" engaged in section 15 programs to which the respondent supplies teachers. Having regard to this Board's usual approach to collective bargaining between school boards and "non-teachers", we require the further assistance of the parties to provide us with the factual foundation on which we can satisfy ourselves that a bargaining unit for a single location is appropriate in the circumstances. If it is not, other questions may emerge concerning the community of interest shared by these non-SBTCNA "teachers" and other "teachers" excluded from the operation of the SBTCNA.
In short, we are not prepared to accept the parties' agreement either as to the Board's jurisdiction or as to the definition of the appropriate bargaining unit. As the evidence and argument to be heard with respect to those matters may affect our final determination on the question of the status of the applicant, that issue will remain reserved until we have heard the necessary evidence and argument.
This application will be re-listed for further hearing. It would assist the Board if the parties in the best position to do so would file with the Board, prior to the hearing, sufficient copies of the following:
(1) the applicant's constitution and by-laws;
(2) the current collective agreement between the respondent and District 14 of the applicant;
(3) the current agreement between the respondent and Humewood House with respect to the section 15 program in question;
(4) the full text of the regulation under the Teaching Profession Act which is referred to in applicants' counsel's letter to the Board of December 20, 1983; and,
(5) any other document upon which either party intends to rely in connection with the issues outlined above.
- The matter is referred to the Registrar.