[1985] OLRB Rep. July 1090
0777-84-R L'Association des Enseignantes et Enseignants Suppleants, Applicant, v. Le Conseil Scolaire d'Ottawa, Respondent, v. The Ontario Secondary School Teachers' Federation, Intervener
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and S. Cooke.
APPEARANCES: Allan R. O'Brien and James M. Hewitt for the applicant; Bruce Stewart for the respondent; Maurice Green for the intervener.
DECISION OF THE BOARD; July 22, 1985
Introduction
- This is an application for certification. It is one of a series of similar applications now before the Board arising out of efforts by "occasional teachers" to form or join a trade union, and engage in collective bargaining. These occasional or "supply" teachers work for various Boards of Education across Ontario. The term occasional teacher is defined in section 1 of the Education Act, R.S.O. 1980, c.129, as follows:
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 was 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.
In many of these applications the occasionals have indicated a desire to be represented by the intervener.
Occasional teachers are called in to work on an as-needed basis, whenever the regular classroom teacher is absent for a temporary period. For example, if a regular history teacher is away for a week with the flu, the school will endeavour to find another history teacher to fill in. Accordingly, it is impossible to predict the precise number or identity of the occasional teachers who will be working for the respondent in any given time period, except in the case of a few so-called "long-term occasionals" who are called upon to replace regular teachers who have died or who are away for a considerable period of time. The work relationships of the occasional teachers will necessarily be casual and erratic. This, in turn, poses certain practical problems for this Board, which we will discuss in more detail below.
It is common ground that the labour relations and collective bargaining of occasional teachers is regulated by the Labour Relations Act. They are not excluded from the Labour Relations Act by section 2(f) because they are not "teachers" as defined in the School Boards and Teachers Collective Negotiations Act, 1975, R.S.O. 1980, c.464 ("Bill 100"). The result is something of an anomaly. Occasional teachers fall under the Labour Relations Act, while the regular contract teachers whom they replace are covered by Bill 100; and the two statutory schemes are quite different. This Board has jurisdiction over only a residual "fragment" of the "education sector". The Board's established approaches to bargaining unit determination simply do not apply very well to these unique circumstances.
The issues in the instant case can be summarized as follows:
Is the applicant a "trade union" within the meaning of section l(l)(p) of the Labour Relations Act
Is the bargaining unit which the applicant seeks to represent "appropriate" for collective bargaining?
If the applied for bargaining unit is appropriate, how does one define its composition - that is, the number and identity of the employees whose wishes are to be canvassed in the certification process?
It is the third issue which arises from the sporadic nature of the occasional teachers' employment, since it could well be argued that the persons named on the respondent's "call-in list" should not be considered "employees in the bargaining unit at the time the application is made", unless they are literally actively at work on the application date. When not actively employed they are simply a list of prospective or potential employees whom the respondent might choose to engage, from time to time as its needs require. However, the parties have agreed that this third issue is already before the Board and will be resolved in Board of Education for the City of York (Board File 0264-84-R). The parties are agreed that the result in the City of York case should be applied here. Unfortunately, following the argument in this matter, the parties in City of York put in further evidence, then exchanged written submissions, thus adding some delay to the issuance of the Board's decision. The City of York decision was finally released on May 6, 1985. (See, [1985] OLRB Rep. May 767.)
[Paragraphs 6 - 13 inclusive omitted: Editor]
The Bargaining Unit
I
The applicant union seeks a bargaining unit comprising the occasional teachers employed by the respondent in the six French language secondary schools established pursuant to Part XI of the Education Act (OSSTF has filed a certification application in respect of the occasional teachers at the other schools). The applicant asserts that the occasional teachers working in the Part XI schools have a distinct community of interest and that, therefore, this subdivision of the respondent's employees constitutes an appropriate bargaining unit for collective bargaining purposes. The applicant's position is supported by the intervener, OSSTF. The respondent asserts that any bargaining unit of occasional teachers should include all such employees whether they regularly work in the six Part XI schools or the other eighteen secondary schools maintained by the Ottawa Board of Education. The respondent maintains that to divide the Part XI schools from the others would create an unwarranted and unreasonable fragmentation of the bargaining structure.
It may be useful to refer briefly to certain aspects and outcomes of the collective bargaining scheme established by Bill 100, as well as the purpose of Part XI of the Education Act. The organization of occasionals has occurred "in the shadow" of Bill 100, and Part XI provides the statutory basis for the respondent's French language schools. The union submits that some of the themes embodied in Bill 100 may assist the Board in fashioning a bargaining unit under the Labour Relations Act, and that the Part XI schools are a distinct, separate and quite unique part of the Ottawa school system.
Part XI of the Education Act provides for schools and programmes designed to meet the educational and cultural needs of French speaking students and the local French community. The size of the programme depends upon local needs, but is obligatory where numbers warrant. The establishment or extension of these programmes involves a significant degree of consultation with a committee of French speaking rate payers. The committee makes recommendations on a variety of matters from the establishment, operation and management of French language instructional units to the provision of transportation for pupils or the development of adult education programmes (see section 267 of the Education Act). Section 275 of the Act establishes a commission known as the "Languages of Instruction Commission of Ontario" composed of five members appointed by the Lieutenant Governor in Council, at least two of whom must be French speaking and at least two of whom must be English speaking. The Commission considers matters referred to it by local committees or the Minister and has certain ancillary responsibilities for the investigation and mediation of local problems. In summary then, the Education Act recognizes the unique status and needs of the French language community and provides an elaborate system of consultation so that the education system will be sensitive to, and accommodate, those needs.
Under Bill 100, the Francophone Teachers' Association, AEFO, is given statutory recognition as an affiliate teachers' organization representing francophone teachers wherever they are employed. This in itself suggests that the francophone teachers may have a distinct community of interest. Why else would the statute provide for a separate statutory bargaining agent for Francophones? AEFO and OSSTF may choose to bargain jointly and conclude a collective agreement containing similar terms for francophone and non-francophone teachers working for the same board, but Bill 100 carefully preserves the autonomy of the two affiliates. Section 4(1) contemplates joint negotiation; it does not require it. Two branch affiliates may find it convenient to act together jointly as one bargaining party, but it appears that they are entitled to give a separate notice to bargain and conclude a separate collective agreement should they so wish. And if this division along linguistic lines seems unusual, it must be remembered that, in the education sector (historically at least) teacher organizations have also reflected their members' sex or religion (see section 1 of Bill 100, which provides that the Federation of Women Teachers' Associations of Ontario and the Ontario English Catholic Teachers' Association are "affiliates" with certain collective bargaining rights for their respective members). Religion, language, ethnicity and gender have institutional recognition in the education sector, in ways which are quite foreign to the private sector or other parts of the public sector.
The collective agreement covering the respondent's regular teachers results from joint collective bargaining between the respondent the local branch affiliates of OSSTF and AEFO which represent their anglophone and francophone members, respectively. The bargaining committee includes representatives from both branch affiliates. The terms and conditions of employment are virtually identical for all teachers, whatever the language of instruction, however, a teacher's particular and allowances may be a little different, depending upon whether he is a francophone member of AEFO or a non-francophone member of OSSTF. The teacher's placement on the grid depends upon the rating and evaluation system employed by the affiliate of which he is a member, and the OSSTF and AEFO systems are somewhat different.
Vacancies are posted throughout the system, but the agreement contemplates two separate seniority lists: one for teachers assigned to teach in the (Part XI) French language secondary schools, and another for teachers assigned in the other schools. There are both practical and contractual limitations on the ability of teachers to transfer from one list to another (see Article 18.10). Positions in the permanent supply pool are also divided along linguistic lines. There are twenty-four such positions of which eight must "be filled from the English Language Seniority List" and six must be filled from the "French Language Seniority List" (see Article 18.13).
To this point, we have been discussing the statutory and collective bargaining framework established for contract teachers, and the special status under the Education Act of the Part XI schools. James M. Hewitt, is an occasional teacher in the Part XI schools and an officer of the applicant. He explained how the occasional teachers fit into the scheme of things.
Mr. Hewitt has thirty-two years of teaching experience, mostly in the Province of Quebec. He spent twelve years as a teacher in Quebec City, four years as an inspector, three years as a high school principal, and thirteen years as the director of English Schools for the City of Quebec. He was represented in Quebec by a unilingual French trade union, and although he is bilingual himself, he told the Board that there were a number of unilingual English teachers working in the same schools who experienced some difficulties dealing with a bargaining agent whose services were provided only in French. According to Mr. Hewitt, that is one of the reasons why he became concerned when OSSTF began to organize occasional teachers in the secondary panel of the Ottawa Board of Education. In his opinion, OSSTF had never had to develop a capacity to deal with the problems of French speaking members since such individuals would ordinarily be represented by AEFO. Since 1968, anyone teaching in a Part XI school has had to be a member of AEFO. The only exception is a small number of individuals who had previously been members of OSSTF and were permitted to continue that affiliation. There are not many of these teachers and their numbers are declining.
In the respondent's six "Part XI schools", French is the language of instruction, communication and administration. French is the language ordinarily used by teachers, students, principals, vice-principals, administrative officials and support staff. The occasional teachers also work in French. The majority of the occasional teachers, ordinarily working in the Part XI schools, are francophone and bilingual, but there are a number of teachers who do not speak English at all.
The vast majority of the occasional teachers who would be in the applicant's proposed bargaining unit teach exclusively in the Part XI schools. There are some individuals (like Mr. Hewitt himself) who are qualified to teach in either stream, but, in practice, there is very little interchange. Most of the occasional teachers who ordinarily teach in Part XI schools, will not accept an assignment in the "English school system" even if they are qualified in both.
The Ottawa Board of Education has a separate budget for Part XI schools, which have different funding criteria. When dealing with occasional teachers, there are two separate "call-in lists": one setting out individuals qualified in Part XI schools, and another for persons available for assignments in non-Part XI schools. In either case, the method of deployment is the same: the principals and vice-principals do most of the hiring and selection. Only a few persons are initially referred through the respondent's personnel office. There are identical terms and conditions of employment for the "English" and "French" language occasionals.
The Ottawa Board of Education has six superintendents. One of them is Guy Lapensee who is the superintendent in charge of Part XI secondary schools. He also oversees some non-Part XI schools, but no other superintendent has responsibility for the French schools. As it happens, Mr. Lapensee's assistant is the recording secretary for the local French advisory committee and Mr. Lapensee himself attends most of the meetings.
The principals and vice-principals working for the respondent have an association. The principals and vice-principals of the Part XI schools are members of the association and attend its meetings. However, the principals and vice-principals of the Part XI schools also have their own separate association, and attend its meetings as well.
II
- The respondent, quite rightly, raises the spectre of fragmentation of the bargaining structure which can often lead to collective bargaining problems - as the Board noted in Kidd Creek Mines Limited, [1984] OLRB Rep. March 481:
- We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purposes of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collective bargaining discord. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient attention to these special interests generates internal strife, while too much attention to minorities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:
- Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.
A patchwork quilt of bargaining units is a recipe for industrial unrest - if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unraveling.
- The point is, that the concept of the appropriate bargaining unit is an instrument of public policy, and in fashioning bargaining units under section 6(1), the Board endeavours to accommodate potentially competing collective bargaining values -including the right to self-organization and the desirability of industrial harmony. Both are objectives which the statute seeks to promote...
While broader-based bargaining units can sometimes contribute to collective bargaining stability and fragmentation can sometimes lead to collective bargaining problems, the Board has not adopted and, in our view, should be reluctant to adopt any rigid, a priori assumptions about what is appropriate - at least in the absence of a well established body of collective bargaining practice in similar circumstances. Section 1(1 )(b) of the Act clearly contemplates that the bargaining unit can consist of a "sub-division" of the employer's enterprise. The Board's task in any particular case is to determine whether the unit applied for is, in all the circumstances, "appropriate". (See generally Board of Education for the City of Toronto, [1970] OLBR Rep. July 430; Ponderosa Steakhouse (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7; Canada Trust Co. Mortgage Company, [1977] OLRB Rep. June 330; K-Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250; Kidd Creek Mines, supra; and, more recently, The Hospital for the Sick Children, [1985] OLRB Rep. Feb. 266.) In particular circumstances, the Board has found a single-branch plant to be appropriate, an office or production employee unit to be appropriate, a full-time or part-time employee unit to be appropriate, a "craft" employee unit to be appropriate, or even (although rarely these days) an appropriate unit consisting of a single "department" in the employer's enterprise. The determination of the "appropriate bargaining unit" is essentially a policy-laden decision, based upon (but not limited to) an assessment of such considerations as: whether the employees have a community of interest, having regard to the nature of the work performed, the conditions of employment, their skills, and the employer's administrative structures; geographic circumstances; the employees' functional coherence, interdependence or interchange with other employees of the employer; the right of employees to a measure of self-determination; any likely adverse effects to the collective bargaining process that might flow from the proposed bargaining unit or from the fragmentation of employees into several units, and so on. Simply put, the question is whether the proposed bargaining unit encompasses a sufficiently coherent subdivision of the respondent's employees to permit viable collective bargaining. The employer's concerns are entitled to consideration, but the unit which best suits the employer's interests, objectives, or administrative convenience will not necessarily be the appropriate unit - not least because in some cases one of the employer's objectives may well be to avoid collective bargaining altogether or limit its effectiveness. It is a question of balance.
The difficulty faced by the Board in this case is that there are very few analogies or precedents to which the Board can look for guidance. Collective bargaining for teachers is primarily regulated under Bill 100, which does not even have a process of certification or bargaining unit determination. In those educational institutions subject to the Board's jurisdiction (private schools and universities) there is no precise equivalent to the occasional teacher, and, in any event, the Board would not normally fashion a bargaining unit composed entirely of casual employees. Individual schools may be a little bit like individual retail stores or branch plants of a larger parent organization, which have usually been held to be separate bargaining units, however, the comparison is far from perfect. We repeat that the Board's jurisdiction only extends to a few of the teachers working in each school, and their numbers and identity will vary constantly.
Occasional teachers fall under the Labour Relations Act almost by default and as the Board observed in the City of York case, it would be much simpler if all qualified teachers employed to teach were covered by the same general legislation governing teachers' collective bargaining. But that is not the case. The occasional teachers, although qualified, are not included in the bargaining system which covers their professional peers. They come within this Board's jurisdiction and the Board must therefore determine how it should weigh its usual approaches and criteria for bargaining unit determination in light of both the history and framework for bargaining established under Bill 100 and the particular circumstances of this case.
We have considered the evidence and representations in this matter together with the particular characteristics and context of collective bargaining in what might be described as the "education sector". The Board is satisfied that the group of employees whom the applicant seeks to represent do indeed share a distinct and definable community of interest and that they can appropriately be grouped together in a bargaining unit reflecting those interests. However, lest there be any misunderstanding as to the basis for reaching this conclusion, we wish to make it clear that community of interest exists quite apart from the identity of the applicant union. The fact that a particular union (or unions) may have the capacity to service the needs of a group of workers in one language or another may explain why employees might choose to join that union, but it does not mean that the Board is or would be influenced in its determination of the appropriate bargaining unit, by the identity of the applicant. For collective bargaining purposes the respondent's six Part XI schools are a distinct subdivision of the respondent's organization, and the occasional teachers working in that subdivision comprise an appropriate bargaining unit. This case goes no further than that.
Having regard to the foregoing and having carefully weighed the evidence and representations of the parties, the Board finds that the unit of employees appropriate for collective bargaining in this case should be framed as follows:
All occasional teachers employed by the respondent in its secondary schools where French is the language of instruction (Part XI schools) in the City of Ottawa, save and except persons covered by subsisting collective agreements.
The Composition of the Bargaining Unit and Related Problems
Because the appropriate bargaining unit is composed entirely of casual employees with an uncertain and quite varied attachment to the employer, there is a final question as to how the Board should determine who should be counted as an "employee in the bargaining unit" at the time the application is made. Similarly, if it is necessary to direct the taking of a representation vote, who should be entitled to vote? These questions were canvassed at some length in the City of York case (see paragraphs 49-55), and it is unnecessary to repeat that analysis here. The parties were agreed that they would abide by the City of York decision on this point. It suffices to say that there is nothing in the circumstances of this case or the submissions of the parties which suggests that we should take any other approach.
We would only add that there may well be persons on the respondent's list of occasional teachers who at the time of the application were no longer available for work even though nominally on the employer's list. This could occur for a number of reasons - for example, if the occasional teacher had secured a permanent job elsewhere but had failed to notify the school board, or moved to another city. We make this observation because in a number of occasional teacher cases it has been necessary not only to reconsider the employee list filed by the employer in light of the principles and approaches set out in the City of York case, but also to purge the list (or a voters' list) of teachers who were nominally available in accordance with the employer's records, but in fact were not actually available because they had left the area or secured permanent work elsewhere, but had failed to notify the employer.
It appears to the Board that, in this case, it may well be necessary to rectify the list of employees filed by the employer in light of these difficulties and the decision in City of York, before the Board can make a final determination of the number of employees in the bargaining unit, the number of union members, and whether there is the requisite degree of membership support to warrant taking a representation vote. To that end, a Board Officer is hereby appointed to inquire into the employee list and the composition of the bargaining unit. Because of the passage of time and the need to verify the accuracy of the employee list, it may be necessary for the respondent to file with the Board and make available to the applicant such information as may be available respecting the employees' current addresses and home phone numbers. Clearly it would be undesirable to include in the employee group those who should not be there, or to exclude those who have a provable interest. While a certification application is necessarily framed as a proceeding between a union and employer, it is the wishes of the employees which are determinative, and it would be unfortunate if employees with the requisite interest were mistakenly excluded from the decision-making process.