Ontario Secondary School Teachers' Federation v. The Oxford County Board of Education, 1985 CanLII 1054

Ontario Secondary School Teachers' Federation v. The Oxford County Board of Education

Citation: [1985] OLRB Rep. September 1409 File No.: 0689-85-R Date: September 19, 1985

Before: R. O. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

Appearances: Maurice A. Green, Jim Forster and Audrey Honeyborne for the applicant; B. H. Stewart, Q. C., John Young, George Hammond and Louanna McGowan for the respondent.

DECISION OF THE BOARD

I

1. The name of the respondent is amended to read: The Oxford County Board of Education.

2. This is an application for certification.

3. Having regard to the recent decision of the Board in the Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279, and The Board of Education for the City of York No. 2, [1985] OLRB Rep. May 767, the respondent does not dispute, and the Board finds, that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. The issue which the parties put before us is not whether the applicant "OSSTF" is a trade union within the meaning of the Act. That question was resolved in the applicant's favour in several earlier Board proceedings, and the respondent here does not seek to challenge that result. The question put to the Board is whether, having regard to the terms of its constitution, OSSTF can actually accept into membership the persons whom it here seeks to represent. Counsel for the parties agreed to address this question first, since its resolution might make it unnecessary to address any of the other issues raised in this application. However, the parties do not agree upon the interpretation of the OSSTF constitution. Counsel for OSSTF argues that the constitution should be given a liberal interpretation so as to broadly embrace any employees in the "education sector" including the secretarial and clerical support staff potentially affected by the present application. The thrust of the OSSTF argument is that it is no longer exclusively a "professional organization" but rather a "union" of workers in the "education sector." The respondent argues that the OSSTF constitution contemplates an organization of teachers, and that secretarial support staff are not entitled to membership. In the respondent's submission, OSSTF is an organization of professional educators, which cannot, and was never intended to represent clerical employees. The principal clause in issue is OSSTF by-law 2 which reads as follows:

By-Law 2 - Membership

Sec. 1 -Types of Membership

(a) Active Members shall include:

(1) Statutory members, who shall be: members of O.T.F.; legally qualified to teach in a secondary school; under contract in accordance with part IX of The Education Act; not employed as an inspector, or as an instructor in a teacher-training institution; and are employed for a period exceeding one month.

(2) Non-Statutory members, who shall be employed in an educational capacity by a board of education or educational institutional offering secondary school credits in Ontario. The enrolment as active members of any group of educational employees who are not statutory members shall require the prior approval of the Provincial Executive.

(emphasis added)

II

5. At the present time, OSSTF represents about 35,000 secondary school teachers employed by various boards of education across Ontario. Most of these teachers are "statutory members" because they are required by statute to be members of OSSTF, and under the School Boards and Teachers Collective Negotiations Act 1975, ("Bill 100"), R.S.O. 1980, c.464, OSSTF is their designated collective bargaining agent. Recently, OSSTF has also taken into membership a number of other professionally qualified "occasional" or "supply" teachers who are called upon, from time to time, to "fill in" for OSSTF's statutory members when the latter are sick, disabled, on pregnancy leave, or otherwise unable to carry out their assigned teaching responsibilities. These "occasionals" are qualified teachers with established Ministry of Education certification, but they are not "statutory members" because they are not required by law to belong to OSSTF nor are they represented by OSSTF under Bill 100. They are active members of the teaching profession whose employment relationships happen to be governed by the Labour Relations Act.

6. None of the persons whom OSSTF seeks to represent in this case are "teachers". The employees in the proposed bargaining unit include such classifications as: public school secretary, library clerk, stenographer, film clerk, senior purchasing secretary, accounts payable clerk, clerk typist-stenographer, purchasing clerk, secondary school secretary, secretary to plant operations, and maintenance department clerk. None of these individuals has a teaching role, nor could they even be described as "professional" employees. They have no direct involvement in the teaching-learning process, nor do they provide ancillary "professional" skills (like those of a guidance counsellor) to assist students to achieve their educational objectives. No doubt, they do have occasional contact with students, but they can probably most accurately be described as clerical "support staff".

7. Apart from the present application, OSSTF has never offered membership to the secretarial, clerical, custodial, maintenance, or other support staff employed by a board of education. Such employees are typically represented by general unions, such as the Canadian Union of Public Employees. Obviously, the clerical support staff provide important services without which it would be difficult to maintain an efficient overall programme of instruction, and in a general sense they are undoubtedly employed "in the education sector", but one would not ordinarily say that they were employed in an "educational capacity". They do not teach students, nor do they contribute directly to the students' intellectual or social development, or the attainment of educational objectives.

8. Since the phrase "employed in an educational capacity" appears in the relevant by-law, and may be important for the decision we have to make in this case, the Board permitted the applicant to adduce evidence concerning its origins - reserving as to the weight (if any) to be given to it. The by-law is a relatively new one, and the Board was of the view that this evidence might arguably be of some assistance in construing the provisions in the OSSTF constitution, which are the focus of the current controversy. If, as OSSTF argued, its constitution had been specifically amended so that it was no longer a teachers' organization and could potentially embrace all employees "in the education sector", the Board determined (without objection from the respondent) that it might be helpful to hear about where the amendment came from.

9. Jim Forster, the associate general secretary of OSSTF, explained that the "provincial assembly" of OSSTF is its senior policy-making body. In effect, it is the OSSTF "parliament". Between meetings of the assembly, there is a standing "provincial council" of OSSTF, and between meetings of the provincial council, OSSTF business is conducted by the provincial executive.

10. The amendment to the by-laws which permits "non-statutory" members was passed in March 1984. Mr. Forster testified that its origin was an omnibus motion endorsing the general principle of organizing all unorganized teachers. The focus was upon qualified teachers, such as supply teachers, who were then unrepresented. The delegates were of the view that such teachers should be represented by OSSTF if that was their wish. There was no consideration or debate about admitting into OSSTF membership clerical or other support staff with no certification, professional training, or direct role in the teaching/learning process.

11. Mr. Forster expressed the opinion that although the debate in the assembly was about unorganized teachers, the wording of the by-law is broad enough to encompass virtually all employees working in what we have loosely described as the "educational sector". It is not restricted to teachers, or professional educators. But there is no formal decision of the OSSTF provincial council or the assembly supporting this position; and while the words of the by-law must obviously speak for themselves, we have some difficulty accepting that the delegates to the OSSTF provincial assembly intended, by a stroke of the pen, to turn a professional organization like OSSTF into a general union (like CUPE or OPSEU or the Teamsters) offering membership and the right of full participation to both professional teachers (albeit unorganized ones like the supply teachers), and unskilled workers with no professional qualifications or teaching role at all.

12. Mr. Forster told the Board that in anticipation of an expanded organizing role for OSSTF, the provincial executive has decided to extend to non-statutory members - including the clerical employees in issue here - the right to select delegates to the annual OSSTF provincial assembly in accordance with a formula based on "full-time equivalent employment".

As we understand it (the documents were requested, but not filed with the Board), this means that the 75 or so clerical support staff affected by this application would have a voice in the selection of delegates to the OSSTF provincial assembly equivalent to that of an equal number of contract teachers, or a much much larger group of part-time or occasional teachers (who by definition are only used to a limited extent or from time to time). As we have already noted, we have no evidence about how the rank and file delegates to the OSSTF provincial assembly may have regarded this proposition, given the fact (as Mr. Forster candidly conceded) that the sole focus of concern and discussion in March 1984 was the plight of unorganized teachers.

13. In any event, whatever the delegates' intentions may have been, we do not think that the language of the by-law, when read in context, supports the assertion that membership in OSSTF can be extended to employees of the kind affected by the present application. The phrase "employed in an educational capacity", which is a prerequisite for membership, simply cannot be stretched that far. When the constitution is read as a whole, it quickly becomes apparent that the phrase is intended to mean "employed in a professional educational capacity" - not simply as a clerk or custodian.

III

14. The objects of OSSTF are spelled out in its constitution. They include [to quote] "first and foremost" [the protection] of its members, both individual and collectively in their profession. In addition, OSSTF intends: "to promote a high standard of professional ethics and a high standard or professional competence; to secure for teachers active participation in formulating educational policies and practices affecting secondary schools; to work toward control of our teachers I professional destiny; [and] to promote political action to ensure that legislation regulating educational structures and policies is in the best interest of teachers, students and the community". On the surface, none of these fundamental objects appear to be readily applicable to clerks, secretaries or stenographers.

15. Under by-law 3, OSSTF maintains a membership pledge, a statement of ethics, a bill of rights for teachers and a set of principles of professional conduct. The membership pledge involves an undertaking to "maintain the highest degree of professional competence" and to "always uphold the honour, dignity and ethical standards of my profession". The statement of ethics involves the assertion that "a teacher should present a practical illustration of scholarship and self-discipline...". The principles of professional conduct are framed with reference to the "supreme importance of effective learning and teaching" so that "the member shall endeavour at all times to enhance public regard for the teaching profession and to discourage untrue, unfair or exaggerated statements with regard to teaching". There are also comments respecting the importance of "stimulating in students the spirit of inquiry and helping each student realize his or her potential".

16. The Bill of Rights for teachers, as one might expect, deals with teachers. Indeed, if one thumbs through the by-laws and related material contained in the OSSTF 1984-85 handbook, it is difficult to find anything that does not relate solely to teachers. To put the matter another way, it is difficult to find very much which does relate to the position of clerical or other support staff whom counsel here argues can be extended full membership in OSSTF.

The titles of the by-laws and policy statements speak for themselves. To pick a few at random we note by-law 5 - "representation of and support for a member in a professional difficulty with a board of education or other external agency"; by-law 6 - "Counselling and Mediation Procedures for Dealing with Disputes Affecting the Professional Relationship between Members"; the collective bargaining tenure policy; the existence of a professional standards and practices council; the many regulations governing the administration of certification; the policy on teacher benefits (this in large red letters); the statement of "legislation relevant to members" (this also in large red letters) referring to the Teaching Profession Act, the Education Act, and Bill 100.

17. We need not multiply the examples. The whole thrust of the constitution, by-laws, and policy statements suggests that the phrase "employed in an educational capacity by a board of education" means employed as a teacher. While one might conceivably "stretch" the meaning to encompass other uncertified professionals employed in an educational capacity (we make no ruling in this regard one way or the other), the phrase cannot plausibly be construed to envisage membership in OSSTF by the target group affected by this certification application. The weight of the evidence suggests precisely the contrary, and it is conceded that OSSTF has no established practice of admitting non-teachers into membership so as to trigger the provisions of section 103 of the Act which reads:

Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its Charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for such eligibility requirements.

IV

18. The issue put before the Board by the applicant and respondent is whether, on a fair reading of the OSSTF constitution, the employees in the proposed bargaining unit are eligible for membership in OSSTF. For the reasons set out above, we have concluded that the OSSTF constitution does not envisage or permit membership of the employees in the position of those in the proposed bargaining unit. It is unnecessary to speculate about the potential result if some future provincial assembly of OSSTF should specify in clear and unequivocal terms that OSSTF is no longer to be a professional organization of teachers, but intends to broaden its base so as to become a kind of "industrial union" on the model of the Steelworkers, Autoworkers or Teamsters encompassing all workers in the education sector.

19. In light of the parties' characterization of this "preliminary issue" and the Board's decision on the question put to it, the parties are directed to advise the Registrar within 14 days whether, in all the circumstances, this proceeding should now be terminated.