Ontario Secondary School Teachers' Federation v. The Board of Education for the City of York, 1985 CanLII 978

Ontario Secondary School Teachers' Federation v. The Board of Education for the City of York

[1985] OLRB Rep. May 767

0264-84-R Ontario Secondary School Teachers' Federation, Applicant, v. The Board of Education for the City of York, Respondent, v. Ontario Public Service Employees Union, Intervener

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and S. Cooke.

APPEARANCES: Maurice A. Green, Fred Burket and Jim Forster for the applicant; D. W. Brady, Steven Moate, B. H. Stewart, Q. C. and Ian Baker for the respondent; Chris G. Pal­iare, Ivor Oram, Barbara Linds and Bruce Ryder for the intervener.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER S. F. COOKE; May 6, 1985

I

1. This is an application for certification. It is a first of a series of similar applications now before the Board, arising out of efforts by "occasional teachers across Ontario to form or join a trade union. The term occasional teacher is defined in section 1 of the Education Act, R.S.O. 1980, c.129, as amended, 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.

Occasional teachers are also commonly referred to as supply teachers. For ease of reference we will adopt the parties' jargon and refer to the regular teachers whom the occasionals replace as contract teachers.

2. In a number of the certification applications pending before the Board, including the present one, occasional teachers have indicated an interest in being represented by the Ontario Secondary School Teachers' Federation (OSSTF). Under the School Boards and Teachers Collective Negotiations Act 1975 (Bill 100) [now R.S.O. 1980 c.464], OSSTF is the collective bargaining representative of some 35,000 secondary school teachers employed by various local boards of education across the province. Accordingly, it is hardly surprising that the occasional teachers might regard OSSTF as the vehicle through which they could best achieve their own collective bargaining aspirations. But therein lies a problem. The OSSTF membership includes about 1,500 principals and vice-principals who are required, by statute, to be members of OSSTF (see section 64 of Bill 100). The respondent takes the position that these individuals exercise managerial functions within the meaning of section 1 (3)(b) of the Labour Relations Act and that, therefore, OSSTF is not a trade union within the meaning of the Labour Relations Act. In the respondent's submission, since OSSTF is not a trade union, it cannot be certified to represent occasional teachers. It does not matter that the majority of the occasional teachers may well want to be represented by OSSTF. Their wishes are irrelevant because, as a matter of law, OSSTF is not permitted to represent them. The respondent's legal position is supported in this case by the intervener, the Ontario Public Service Employees Union (OPSEU) which also asserts that OSSTF is not entitled to represent occasional teachers. OPSEU claims that right for itself.

3. This application was made pursuant to section 9 of the Labour Relations Act which sets out the procedure for the taking of a pre-hearing representation vote. By a decision dated May 23, 1984 and, on the agreement of the parties, the Board directed a representation vote in the following voting constituency:

All occasional teachers employed by the respondent in its secondary panel in the City of York, save and except persons covered by subsisting collective agreements.

Voters were asked to signify whether or not they wished to be represented by the applicant OSSTF or the intervener OPSEU, or no union at all in their employment relations with the respondent. The ballot box has been sealed pending a resolution of the various issues and objections raised by the respondent and the intervener.

4. We have already identified one of these issues: whether OSSTF is a union under the Labour Relations Act which is entitled to represent occasional teachers, or to put the matter from another perspective, whether the choice of bargaining agents open to occasional teachers includes OSSTF. If it does not, then OSSTF could not properly appear on a ballot. A second but equally important question is how to determine the composition of the bargaining unit —that is the number and identity of the individuals whose wishes are to be canvassed in the certification process. This problem arises because of the casual and sporadic nature of the occasional teachers' employment, since, from a purely common law point of view, it could well be argued that many of the occasional teachers should not be considered employees at all except when they are actually working. They are simply prospective or potential employees whom the respondent might choose to engage as its needs require. They would not be considered employees in the bargaining unit at the time the application is made unless they were literally, actively at work on the application date. However, none of the parties urged the Board to interpret section 9 solely in terms of the common law indicia of employment. All of the parties asserted that the Board should adopt an interpretation that made collective bargaining sense in the rather novel circumstances of this case. Unfortunately, the proposed tests were different.

II

5. It is common ground that the labour relations and collective bargaining of occasional teachers is regulated by the Labour Relations Act. They are not teachers as defined by Bill 100; hence they are not excluded by section 2(f) of the Labour Relations Act [see: section 230 of the Education Act, and section l(l)(m) of Bill 100]. The result is that the occasionals fall under the Labour Relations Act, while those whom they replace are covered by Bill 100. As a matter of background, it may be useful to refer to some of the special features of Bill 100 which were outlined by the Board in another very recent case involving OSSTF and the respondent board of education. In Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 (the Humewood House decision) the Board had this to say:

20. The School Boards and Teachers Collective Negotiations Act was enacted in July of 1975. Before its enactment, no special or general legislation regulated collective bargaining between teachers and school boards in Ontario. Collective bargaining did, however, take place between them (see J. Douglas Muir, Collective Bargaining by Canadian Public School Teachers, Task Force on Labour Relations Study No. 21 (Ottawa: Information Canada, 1968); Bryan M. Downie, Collective Bargaining and Conflict Resolution in Education: The Evolution of Public Policy in Ontario (Industrial Relations Centre, Queens University, Kingston, Canada, 1978); and Peter Hennessy, Schools In Jeopardy: Collective Bargaining in Education, (McClelland and Stewart, Toronto, 1979)). In October, 1970, the Ontario government established a committee of inquiry whose terms of reference were to inquire into, report upon and make recommendations with respect to the process of negotiation between teachers and school boards, including, inter alia, the definition of bargaining units. The committee formally known as The Committee of Inquiry Into Negotiation Procedures Concerning Elementary and Secondary Schools of Ontario was chaired by Judge Reville and will be referred to here as the Reville Committee. It prepared a report dated June, 1972 entitled Professional Consultation and the Determination of Compensation for Ontario Teachers in which it reviewed the matters referred to for inquiry and set out its recommendations. The committee's recommendation with respect to bargaining unit scope was that the bargaining agent should represent all employees of a board who hold a teaching certificate, except supervisory officers of the school board. The Ontario Teachers' Federation, which took the position that it should be the statutory bargaining agent for teachers, responded to that recommendation this way:

The Federation feels that the Committee's recommendation is not precise enough. For example, the Federation does not feel a responsibility to negotiate the salary of an employee of a board who holds a teaching certificate which is not a prerequisite under the Schools Acts and Regulation for employment — for example, a clerical worker with teacher qualifications who works in a school board's office.

The Federation recommends that the members of a teacher negotiating entity shall include those persons coming under the definition of teacher in the Teaching Profession Act. (Submission to the Minister of Education in Response to the Report of the Committee of Inquiry into Negotiations Procedures, Ontario Teachers' Federation, June, 1972, p. 6.)

Very few of the Reville Committee's recommendations were implemented in Bill 100. The definition of teacher ultimately adopted in Bill 100 incorporates all of the elements of the definition of that term in the Teaching Profession Act and adds for good measure the stipulation that the employee be employed as a teacher. Whether that approach achieved precision might now be a matter of debate.

21. The scheme adopted in Bill 100 was that each teacher employed by a board would be represented by an organization called a branch affiliate consisting of all the teachers employed by a board who are members of the same affiliate. (s. 1(a)). Each of the five affiliates of the Federation is an affiliate. Paragraph 1(m) defines teacher this way:

(in) 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 Act applies to all teachers:

3. -(1) This Act applies to all collective negotiations between boards and teachers in respect of any term or condition of employment put forward by either party for the purpose of making or renewing an agreement.

4. A branch affiliate shall, in negotiations and procedures under this Act, represent all the teachers composing its membership.

It also applies to principals and vice-principals, who are members of the bargaining unit, although they are not permitted to strike:

64.-(l) A principal and a vice-principal shall be members of a branch affiliate.

(2) Notwithstanding subsection (1), in the event of a strike by the members of a branch affiliate each principal and vice-principal who is a member of the branch affiliate shall remain on duty during the strike or any related lock-out or state of lock-out or closing of a school or schools.

The Act contemplates the continued significance of the individual contract of employment between the board and a teacher:

54.-(l) An agreement between a board and a branch affiliate shall be deemed to form part of the contract of employment between the board and each teacher who is a member of the branch affiliate.

(2) Where a conflict appears between a provision of any other part of a contract of employment and a provision of the agreement referred to in subsection (1), the provision of the agreement prevails, but no agreement shall conflict with the form of contract prescribed by the regulations under the Education Act.

22. The approach to collective bargaining adopted in Bill 100 differs in a number of respects from the approach of the Labour Relations Act. There is no provision for certification of bargaining agents or determination of the appropriate bargaining unit; both the bargaining agent and the scope of the bargaining unit are fixed by Bill 100. The parties are not free to determine the commencement and expiry dates of their collective agreement; under Bill 100, collective agreements must become effective on the 1st day of September and expire only on the 31st day of August in a subsequent year. To be effective, notice to bargain must be given in the month of January in the year in which the agreement expires, considerably earlier than would be the case under the Labour Relations Act. Bill 100 provides for fact finding, rather than conciliation, as the third party intervention prerequisite to the resort to the sanctions of strike and lockout. In addition to fact finding, section 63 of Bill 100 prescribes a number of other prerequisites to strike or lock-out activity beyond those found in the Labour Relations Act, including a vote on the Board's final offer and a strike vote, with both votes conducted under the supervision of the Education Relations Commission, as well as at least five days' written notice to the board of the date on which the strike will commence. Like the Labour Relations Act, Bill 100 imposes on each of the parties to collective bargaining the obligation to bargain in good faith and make every reasonable effort to make or renew an agreement. Jurisdiction to assess and enforce compliance with this obligation is assigned to the Education Relations Commission, which is also assigned a number of other duties which have no equivalent in the jurisdiction assigned to the Ontario Labour Relations Board under the Labour Relations Act. Bill 100 assigns to the Ontario Labour Relations Board jurisdiction over applications for a consent to prosecute alleged contraventions of the Act (subsection 77(6)), and applications for declarations and directions with respect to allegedly unlawful strikes and lockouts (section 67).

However, as noted, Bill 100 does not apply to all teachers. Occasional have been excluded, and, by default fall under the Labour Relations Act. It is not clear why they were omitted. There is no indication that the Legislature ever turned its mind to their situation.

6. Bill 100 Was an innovative piece of legislation designed to deal with the special needs of a portion of the education sector. But it was not without its critics. On October 24, 1979, when Bill 100 had been in operation a little over four years, the Minister of Education established a Commission of Enquiry (The Matthews Commission) under section 9 of the Education Act, for the purpose of reviewing the collective negotiation process between teachers and school boards. Its terms of reference were as follows:

Terms of Reference for the Commission

On completion of their review and inquiry, the Commission shall recommend measures that the Government should consider in relation to collective negotiations for teachers employed in elementary and secondary schools, having in mind the general public good and the rights of teachers to just and equitable remuneration and conditions of employment and include in the report a response to the following specific issues:

1. Whether negotiations between school boards and teachers should continue on the basis now provided under The School Boards and Teachers Collective Negotiations Act, 1975 and, if so, what changes, if any, should be made to facilitate the operation of the collective bargaining process in the light of experience to date;

2. Whether negotiations should be conducted on some other basis, and, if such other bases are recommended,

A) Who should be the parties to the negotiations, and,

B) The manner in which the negotiation process should be carried out;

3. Whether elementary and secondary school teachers employed by a board of education should negotiate separately or together;

4. What restrictions, if any, should be placed by legislation on the items that may be included in collective agreements between school boards and teachers;

5. Whether the sanctions available under The School Boards and Teachers Collective Negotiations Act, 1975, are appropriate or whether they should be defined in greater detail.

The Commission shall also consider and make recommendations as to what relationship should exist between the collective agreement and the individual teacher's contract.

It should be noted that the Commission will be examining only the collective negotiation process between teachers and school boards. Its recommendations, if acted upon, may have implications for the collective negotiation process as it now applies to Colleges of Applied Arts and Technology and to the Provincial Schools Authority. If this is the case, the policy in these areas will be reviewed by a separate process.

The Commission's report was submitted on June 18, 1980. It was unanimous on all issues material to this case.

7. The Report comprises some 137 pages, and from our perspective, there are only two aspects of particular interest. The first is that the Commission explicitly considered the position of occasional, night school, and summer school teachers and recommended that Bill 100 be amended to provide for their inclusion in bargaining units represented by the various teachers' federations [see the discussion at pp.48 of the Report]. The Commission also considered whether principals and vice-principals should be full members of the teachers' federations and the bargaining units they represent — an issue that was contentious when Bill 100 was drafted and remained highly controversial. The outlines of what was obviously a spirited debate appear at pages 40-47 of the Commission Report. Ultimately, the Commission concluded that principals and vice-principals should remain in the bargaining unit:

The Commission believes that it is possible that the position of principal would be judged under The Labour Relations Act to be a management position and therefore would be excluded from the bargaining unit. However, Bill 100 was enacted in 1975 specifically because it was thought that The Labour Relations Act was not suitable for the public education sector.

There have been no amendments to Bill 100 dealing with the position of occasional teachers, or principals and vice-principals. The Legislature chose to maintain the status quo.

8. It may well be (as the Matthews Commission suggests) that the Labour Relations Act is not suitable for the public education sector. But for occasionals, it is their only alternative. Although they are qualified teachers they are not included in the bargaining system which covers their professional peers. By default, they fall within the ambit of the Labour Relations Act. This creates something of an anomaly. It would be much simpler if one could say that all qualified teachers employed to teach are covered by the general legislation governing teacher collective bargaining. But that is not the case. Some teachers come under the Labour Relations Act and in this application we must determine whether the range of bargaining representatives open to occasional teachers under that Act includes OSSTF — the bargaining agent for the teachers whom the occasionals replace, and the entity designated by Bill 100 to represent the interests of secondary school teachers in Ontario. We must also decide how to apply the Labour Relations Act to employment relationships which are totally casual.

9. Since there is obviously a need for a definitive answer to these questions, the parties are agreed that this application will be treated as a test case. The principles emerging from it will be useful in resolving the other similar applications currently pending before the Board, which, in many cases, also involve OSSTF (and sometimes OPSEU) and various local boards of education. These cases have been adjourned pending the decision in this one.

10. With this background, then, we turn to the evidence. As it turned out, the facts were not substantially in dispute.

III

11. Occasional teachers are called in to work on an as-needed basis, whenever the regular classroom teacher (permanent, probationary, or temporary) is absent for a temporary period. 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. It is a matter of securing someone qualified who is available within the required time frame. It is impossible to predict the precise number or identity of the occasional teachers who will work for the board 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.

12. The employment profile of the occasional teachers employed by the respondent in 1983-1984, bears out the casual and erratic nature of their work relationships. It appears that of the approximately 200 occasional teachers who worked for the respondent, at least one-half worked for fewer than ten days and perhaps a third worked fewer than five days. Only twenty per cent appear to have worked more than thirty days and only about ten per cent of these teachers worked three months or more. And to complicate matters, we might note that of the 81 persons who cast ballots in the representation vote, at least 22 never worked for the respondent at all in the 1983-84 school year — yet they obviously regarded themselves as having some attachment to the respondent and at least sufficient interest to show up to vote.

13. A perusal of the occasional teachers' individual work patterns also reveals considerable variability. For example, in the 1983-84 school year Shirley Binder worked five days: one in September, one in November, and three in January. Monica Ahrens worked five days too: one in April and four in May. She was at work on the day the certification application was made and, therefore, by any test, was an employee in the bargaining unit on the application date. Nelica Bujic worked much more — 39 days between September, 1983, and the end of January, and, accordingly might be said to have a stronger relationship with the respondent than Ms. Ahrens. But Ms. Bujic was not at work on the application date, nor had she worked in the previous three months. Connie Charlton worked fewer days than Ms. Bujic, but worked at least once every month from September, 1983 to June, 1984. She was not at work on the application date. John Pownall worked only three days in the 1983-84 school year; but one of those days was April 27th, the application date, so again, he is clearly an employee in the bargaining unit on any test. The problem is obvious. Who other than those actually at work when the application was made should be treated as an employee in the voting constituency and bargaining unit for the purpose of section 9 of the Act? We shall return to this problem later.

IV

14. Norman Ahmet gave evidence on behalf of the respondent concerning the selection of occasional teachers and the responsibilities of principals and vice-principals vis-a-vis contract teachers. Mr. Ahmet is currently assistant superintendent of student services. He has worked for the respondent for 20 years and has held positions as a classroom teacher, department head, vice-principal, principal, and supervisory officer. Mr. Ahmet's evidence was not seriously challenged and we have no hesitation in accepting it.

15. Mr. Ahmet testified that there was no established list from which occasional teachers are selected. The respondent does circulate a list of persons who have applied directly to its personnel office; however, the department heads in each school apparently maintain their own list of persons known to them to have the qualifications to teach their particular subject should a regular teacher be absent. When a history teacher calls in sick, or is expected to be absent, the department head in the history department will choose someone to fill in. The absent teacher may also suggest a replacement. Thus, short-term occasionals are not typically selected by the principal or vice-principal — although they may take part in the decision as to whether a class should be cancelled or assignments juggled so that it will be unnecessary to call in a supply teacher. Mr. Ahmet testified that if a regular teacher was to be away three to four weeks, the principal would usually ask the department head if he knew anyone available, and only if the response was negative would it be necessary to take out advertisements or conduct a search. There is no evidence that this has ever been necessary. On the other hand, in the case of long-term occasionals (a term which no one sought to define), there would ordinarily be a selection committee, consisting of the principal, vice-principal and department head, which would interview prospective candidates. In relative terms, there are not very many of these long-term occasionals.

16. There is no evidence that the principals or vice-principals have any input or influence over the terms and conditions of employment for occasional teachers. They may sporadically participate in the selection process, but they do not prescribe the wage or benefit levels for occasional teachers. These matters are determined by the respondent.

17. Mr. Ahmet testified that in the 1983-84 school year, the respondent introduced a new policy of evaluating the performance of occasional teachers. But the evidence is that this policy has not actually been implemented nor was it established that the principals or vice-principals play a key role in the evaluation process. Mr. Ahmet said that, as far as he knows, there are no written evaluations of any of the some 200 occasional teachers who worked for the respondent in 1983-84, even though under the new policy it was supposedly the responsibility of the personnel office to maintain such information, on the advice of the school principal, so that there could be a direction not to call unsatisfactory employees or not to send particular teachers to a particular school. The intention was that the individuals themselves would also be notified, but again, there is no evidence that this has actually happened. In cross-examination, Mr. Ahmet indicated that it was the department head who was supposed to inform the principal of inadequate performance. This suggests that it is the department head who plays the critical role in this matter. The principal would be merely a conduit of information to the personnel office — which is only to be expected when it is the department head who initially decides who will be selected to fill any available vacancy. And, as things now stand, the critical job interest of most of the occasionals is whether or not they will be selected for work.

18. Before reviewing Mr. Ahmet's evidence concerning the duties of principals and vice-principals, it may be useful to set out the statutory description of their responsibilities found in section 236 of the Education Act and sections 12 and 13 of Regulation 262 under that Act. They provide:

Education Act

236. It is the duty of a principal of a school, in addition to his duties as a teacher,

(a) to maintain proper order and discipline in the school;

(b) to develop co-operation and co-ordination of effort among the members of the staff of the school;

(e) to prepare a timetable, to conduct the school according to such timetable and the school year calendar or calendars applicable thereto, to make the calendar or calendars and the timetable accessible to the pupils, teachers and supervisory officers and to assign classes and subjects to the teachers.

Regulation 262

12(3) In addition to the duties under the Act and those assigned by the board, the principal of a school shall,

(a) supervise the instruction in the school and advise and assist any teacher, in co­operation with the teacher in charge of the organizational unit or program in which the teacher teaches;

(b) assign duties to vice-principals and to teachers in charge of organizational units or programs;

(e) report to the board or to the supervisory officer in writing, on request, on the effectiveness of members of the teaching staff and give to a teacher referred to in any such report a copy of the portion of the report that refers to the teacher;

(f) recommend to the board,

(i) the appointment and promotion of teachers, and

(ii) the demotion or dismissal of a teacher whose work or attitude is unsatisfactory, but only after warning the teacher in writing, giving the teacher assistance and allowing the teacher a reasonable time to improve;

13(I) A board may appoint one or more vice-principals for a school.

(2) A vice-principal shall perform such duties as are assigned to the vice-principal by the principal.

(3) In the absence of the principal of a school, a vice-principal, where a vice-principal has been appointed for the school, shall be in charge of the school and shall perform the duties of the principal.

19. The local school principal, as the legislation suggests, is both the principal teacher in the school, and the base of the respondent's administrative hierarchy. Above principals, there are eight academic supervisory officers covering elementary and secondary schools, a superintendent of personnel, a director of education, and ultimately a board of trustees. Within the school itself those involved in administration include the principal, vice-principal, department heads and, depending upon the size of the school, various assistants or specialists occupying positions of responsibility. Mr. Ahmet estimated that there were approximately 500 contract teachers on staff (i.e. individuals holding a permanent or probationary teacher's contract).

20. The evidence establishes that the principal has no independent authority to hire, fire or discipline contract teachers, although, as the person with the most immediate knowledge and responsibility for the workings of the school, the principal's opinions or recommendations will obviously be accorded considerable weight. However, given the legislative framework, professional context and collegial mode of decision-making, it is a little difficult to assess the precise independent significance of the principal's role. As one might expect, the relationship between highly trained professionals is not the same as that of superiors and subordinates in an industrial plant. In a professional milieu, problem-solving, peer review, counselling, and professional development, replace the more overt exercise of authority found in more traditional employer-employee relationships.

21. When it is necessary to hire probationary or permanent contract teachers, the board takes out advertisements, the principal conducts an interview, and a recommendation is made to the board of trustees. That recommendation is generally accepted. However, the interview and selection process will typically include not only the local principal, but also the vice-principal, the department head in the subject area, and perhaps a supervisory officer as well. The recommendation forwarded to the board reflects the consensus of the group. The selection committee for a new department head will usually consist of the principal, the vice-principal, a department head in the subject area, and a supervisory officer. In the event that a new vice-principal is needed, the position is advertised in the local schools and the decision is made by a selection committee consisting of four board trustees, four supervisory officers, and the principal's representative. The selection committee will have before it the principal's evaluation of the candidate(s) and again makes a consensus recommendation to the board.

22. All probationary teachers (i.e., teachers employed on a probationary basis for up to two years) are evaluated at least three times a year by the principal or vice-principal. Permanent teachers are evaluated at least once every three years. In determining whether a probationary teacher should be accorded permanent status, the principal's evaluation is decisive. The principal will also be involved in a red flag situation where a teacher is exhibiting personal or performance problems. In theory, if such problems are not resolved a teacher could be terminated; but in practice, that does not happen. Mr. Ahmet testified that he could not recall any disciplinary discharge of a contract teacher in the secondary panel. Minor problems such as tardiness are ironed out by the principal, vice-principal, or department head in the collegial and consultative manner to which we have already referred. Mr. Ahmet was unaware of any discipline grievance in the past year and, in fact, there is no evidence of anything which would be considered disciplinary in a standard industrial relations sense. Mr. Ahmet expressed the opinion that if, for example, a teacher were charged with a serious sexual offence, the respondent's response would be formulated by the director of education and supervisory officer with the involvement of the principal.

23. The principals, vice-principals, and department heads are all covered by the current collective agreement between OSSTF and the respondent. They are part of the bargaining unit. The agreement recognizes a number of positions involving administrative functions, as well as the way in which the principal's decisions can impinge upon the teaching staff.

24. The principal is ultimately responsible for the timetable and thus the work load and work assignments — although he will obviously work closely with the vice-principal and department heads in order to ensure the best utilization of available resources. Where a teacher has a complaint about an excessive work load, there is an elaborate procedure of consultation with the department head, principal, and/or other relevant persons, including the appropriate supervisory officers of the Board regarding the stated problem. When supervisory officers of the board are involved, a representative of the Branch Affiliate will be present if the teacher so requests. The department head, principal or other officer must, in the course of consultation, make available to a school work load representative all relevant information used in timetabling (see Article 4. 10 of the current collective agreement). If the department head, principal and! or the supervisory officers involved come to the conclusion that the excessive work load is not the result of legitimate timetable considerations, course option factors, or reasons related to the aggrieved teacher's area of specialization, they must take steps to rectify the problem.

25. There are other provisions of the collective agreement which illustrate the ambivalent role of the principal. Article 2.1.5.1.0 of the collective agreement contemplates that reports from the principal and/or supervisory officer may indicate that a teacher's performance is less than satisfactory and may lead to the withholding of an annual salary increment — subject to a fairly elaborate formula for examining and contesting that assessment. The agreement specifically recognizes that if a teacher's performance is inadequate and his increment withheld for more than two successive years, his employment may be terminated. Again, there is no evidence that this has happened.

26. The grievance procedure available to individuals alleging a breach of the collective agreement includes principals, and also indicates their ambivalent role. At step 1, a teacher who has a grievance must notify his principal of the grievance, but they can discuss the grievance only if both parties agree. This discussion may well result in a resolution of the problem, but if it does not, the issue proceeds to the director of education for his consideration. What is interesting is that the involvement of the principal depends upon the wishes of the grieving teacher, his professional colleague. A grieving principal notifies the supervisory officer.

27. Counsel for the respondent drew our attention to a number of other provisions of the collective agreement but, by and large, we do not regard them as particularly significant. For example, it appears that teacher redundancy or the phasing out of redundant positions of responsibility turns largely on enrolment figures or course choices rather than any judgment of the teacher's professional abilities which might call into play a potential conflict of interest between the employer and its employees. And, as we have already mentioned and will refer to again, these potential collective bargaining frictions have not been considered by the Legislature to be sufficient to justify the exclusion of principals from the ambit of collective bargaining.

V

28. What is interesting about this evidence is the absence of a clear line between superiors and subordinates — management and labour — of the kind which one might expect to find in a more traditional industrial setting. Here, it is very difficult to determine precisely how much independent influence the principal or vice-principal actually has. Insofar as contract teachers are concerned, the evidence reveals little of the industrial relations conflict which section l(3)(b) was designed to avoid (see Corporation of the District of Burnaby [1974] 1 Can. LRBR at p.3; and Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199). But perhaps that is not so surprising. In this professional context, the members of the OSSTF bargaining unit are all highly trained and responsible persons who are largely self-motivated, capable of exercising independent judgment, and requiring little external direction in the performance of their regular duties. Such direction as is necessary can be generated internally through group discussion, evaluation by peers, or collegial modes of decision-making, and one would not expect the managerial structure appropriate for professionals to be the same as that for manual workers. Professional employees will have a special relationship with their employer and with their fellow professionals.

29. The evidence establishes that the principals and vice-principals do not exercise much direction or control over the occasional teachers — not because they do not have the ultimate authority to do so, but rather because the occasion does not arise. Arranging for the employment and supervision of occasional teachers is a minor aspect of the principals' (or vice-principals') role and, on the evidence, the critical decisions for most occasionals are made by the department heads. For the most part, it is the department heads who determine who will be called and it is the department heads who make a professional assessment about the abilities of particular occasional teachers. The exercise of such authority, however, is so attenuated, sporadic and diffused that it is not very much different from the kind of authority exercised in an industrial context by senior or regular employees who may be called upon to express an opinion on the abilities of students, probationary employees or temporary employees with whom they work from time to time. Such recommendations are likely to be given considerable weight with respect to these casual employees, not because those expressing them have managerial authority, but because the recall of one casual as opposed to another does not matter very much, so long as they display a minimum level of competence. The persons with whom they work directly are in the best position to express an informed opinion.

30. Peer review or evaluation is not uncommon in a professional setting, and is not, in itself, a managerial function within the meaning of section 1(3)(b). In a hospital context, a registered nurse might be called upon (and under an obligation) to express an opinion on the professional judgment or competence of a fellow nurse (full-time or casual), or an RNA. The expression of such opinions would not remove her from the bargaining unit or raise questions about the status of the Ontario Nurses' Association (see: Ottawa General Hospital, supra, and Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84). In a university setting, appraisal by professional peers is institutionalized, and it is not at all unusual for tenure committees composed of various members of the academic staff to determine or recommend whether other academics will be promoted or given tenure, or for a committee of professors to interview prospective colleagues and make an effective recommendation as to which of several candidates should be hired. This is not to deny that professional employees may also exercise managerial functions within the meaning of section 1(3)(b). It is simply that there must be a careful appraisal of the professional context. The adversarial model, conflict of interest rationale, and two-sides approach to collective bargaining is not easily applied to a group of professionals — as the Legislature undoubtedly recognized when it determined that principals and vice-principals should be included in the same bargaining units as their fellow teachers.

31. For these reasons, we have had some difficulty deciding how section 1 (3)(b) would be applied to the relationship between principals and contract teachers if they were covered by the Labour Relations Act, and how it should be applied to the relationship with occasional teachers who are covered by the Act. It has been difficult to pinpoint just where managerial authority resides. The respondent argued that it was vested in law and practice in the principal. The evidence suggests that, insofar as occasionals are concerned, supervisory or managerial authority is vested primarily in the department heads. Clearly, there must be someone managing the occasionals in the sense contemplated by section 1(3)(b), and equally clearly that someone will be a member of OSSTF. Without being too specific about where effective control resides, or distinguishing the situation of long-term and short-term occasionals, it is evident to us that there are members of OSSTF who exercise managerial functions within the meaning of section 1(3)(b) vis-a-vis the occasional teachers. It remains to be determined whether this means that OSSTF is not a trade union and cannot be certified to represent occasional teachers.

VI

32. In order to appreciate the thrust of the parties' arguments, it is necessary to set out certain provisions of the Labour Relations Act. They are as follows:

1-(l) In this Act,

(p) trade union means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

3. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

4. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

5. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or

(b) if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

66. Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of cluse l(l)(p), such finding is prima fade evidence in any subsequent proceeding under this Act that the organization of employees is a trade union for the purposes of this Act.

33. The position of the respondent and the intervener can be quite simply stated. They argue that under section l(l)(p) a trade union is an organization composed exclusively of employees or of employees only. A trade union cannot be an organization of employees and others; and, in particular, a union cannot include among its membership persons who are not employees under the Act, and could not be considered employees because of section l(3)(b). Of course, strictly speaking, section 1(3)(b) cannot have any application because all contract teachers, including principals, vice-principals and department heads are excluded from the Act because of section 2(f). However, the respondent and intervener argue that principals and vice-­principals and department heads, individually or collectively, have effective managerial authority over the occasional teachers, of a kind and character which would fall within the ambit of section l(3)(b) if it applied to them. It is argued that because they are also members of OSSTF, OSSTF cannot be considered to be a trade union. It follows that OSSTF is not entitled to represent occasional teachers and that occasional teachers are precluded from selecting OSSTF as their bargaining agent. We were referred to the following Board decisions: Hydro Electric Power Commission of Ontario, [1971] OLRB Rep. Aug. 501, Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 87, Chrysler Canada Limited, [1975]OLRB Rep. Nov. 852, Armour Associates Ltd., [1976] OLRB Rep. March 117, Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651, and Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889. Particular reliance is placed on the HEPCO case, supra, which held that an organization which included among its members persons who exercised managerial responsibilities, was not a trade union within the meaning of the Act, because a trade union must be composed exclusively of employees.

34. In reply, OSSTF points out that all of the decisions relied upon by the respondent and intervener are clearly distinguishable on the basis that none of the associations dealt with in those cases had, as OSSTF does, a far-reaching and independent base comprising thousands of members, and an established independent collective bargaining role under another statute. OSSTF cannot possibly be considered a weak, dependent, or company-dominated organization, controlled by agents as management, nor can the respondent plausibly make that claim. That is the mischief which concerned the Board in HEPCO and the other cases mentioned above, but it is not present here, Indeed, it is OSSTF's forthright and effective advocacy on behalf of teachers' interests which may make it attractive to the occasional teachers.

35. In OSSTF's submission, the purported conflict of interest referred to by the respondent and the intervener is a red herring which, in practice, is unlikely to occur, and which has not interfered with orderly collective bargaining in the education sector where principals and vice-principals are, by statute, included in the bargaining unit with contract teachers. The Legislature considered whether the exercise of administrative or supervisory functions prevented principals and vice-principals from being included in a bargaining unit along with their professional peers and decided that it did not. OSSTF urges the Board to consider this particular professional context and legislative choice, and not to second-guess the decision of the Legislature. OSSTF also notes that no occasional teacher has raised any concern about the composition of its membership. Only the respondent and intervener have done so. OSSTF asks rhetorically: why should occasional teachers be deprived of the right to choose OSSTF because of the respondent's allegations of conflict of interest? Even from the respondent's perspective, there is no reason to believe that principals, vice-principals and department heads will not be able to continue to fulfill their responsibilities to the respondent just as principals and vice-principals currently do with respect to contract teachers. The alleged managerial role does not impede collective bargaining under Bill 100, and, if anything, it is more marked in respect of contract teachers than occasionals. OSSTF asserts that the respondent and intervener are attempting to import as critical criteria in this jurisdiction, factors which both the Legislature and the Matthews Commission have rejected. If principals and vice-principals can be in the same bargaining unit as contract teachers under Bill 100, without creating a collective bargaining anomaly, then occasional teachers can be represented by OSSTF, if that is their wish. The statutory scheme under the Labour Relations Act is flexible enough to accommodate any difficulties without finding that OSSTF is not a union.

36. OSSTF further argues that the Board has no jurisdiction to read the word exclusively or employees only into the definition of a trade union found in section l(l)(p) of the Act. The Board cannot add a qualification which does not appear on the words of the statute itself (see: Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498), and there is no need to do so here where the membership of OSSTF, including any arguable anomalies, has been prescribed by law. The so-called managerial personnel are members of OSSTF because the Legislature has prescribed that they must be. Moreover, the fact that OSSTF, or any other union for that matter, may have among its members persons not covered by the Labour Relations Act is inevitable, given the fragmented legislative jurisdiction over labour relations. OPSEU also includes thousands of employees who are not covered by the Labour Relations Act, but that does not mean it is not a trade union when it seeks to organize employees who are covered by the Labour Relations Act. Because the Canada Labour Code applies to supervisors, any union operating in the federal jurisdiction will quite likely have among its members persons whom the Board would consider managerial. Again, that does not mean that a union operating in the federal jurisdiction cannot be a trade union under the Labour Relations Act. A union might not be able to represent such persons under the Labour Relations Act, however, that does not mean that they could not be taken into membership. A union does not cease to be a union if it offers membership to persons to whom the Labour Relations Act has no application — such as a lawyer, architect, agricultural employee, crown employee or teacher. There is a distinction between the right to join or be a member of a trade union, and the right to have that union represent you for collective bargaining purposes. A teacher could join OPSEU without affecting its union status even though OPSEU could not represent that teacher in collective bargaining.

37. In OSSTF's submission, it is an organization of employees in fact. Teachers are employees. So are principals, vice-principals and department heads. OSSTF does not cease to be a union because its membership may include some persons who might not be considered employees under the Labour Relations Act if that statute were applied to them. It is artificial to apply a section 1(3)(b) standard to persons to whom it does not apply at all, yet ignore the statute and experience which does govern the collective bargaining relationship of most teachers in Ontario and suggests that there is no collective bargaining anomaly if teachers higher in the administrative hierarchy are included in the same bargaining unit as those further down. Insofar as the Labour Relations Act does apply to members of OSSTF, there are no such members who exercise managerial functions.

38. Counsel for OSSTF notes that section 3 of the Labour Relations Act contemplates that any person is entitled to join a trade union and participate in its lawful activities. This, in itself, suggests that membership can be extended to non-employees. If it were otherwise, and if the Board were to apply a strict and literal meaning, the word employees in section a union would cease to be a union if any non-employee (retirees, spouses of members, the unemployed, etc.) were admitted to membership. Unions are not restricted by law to collective bargaining activities, however, if the respondent and intervener are right, any enrolment of non-employee members to pursue other endeavours (a co-operative housing project for example) could prejudice the union's status under the Labour Relations Act. But if unions, by law, are not restricted to collective bargaining endeavours, why should collective bargaining considerations be the sole determinant of who can be a union member?

39. OSSTF points out that many craft unions, particularly in the construction industry, count among their members person who have left bargaining units to become foremen, superintendents, and even the proprietors of small businesses. They retain their trade union membership for a number of reasons, the most pragmatic of which is the recognition that the vagaries of the market might well compel a change in their fortunes and a return to employment for which trade union membership is an advantage or prerequisite. They may also want to maintain their entitlement to union pension or welfare funds to which they may have contributed. Whatever the reason, these trade unions do have such persons among their members, and no one would seriously suggest that because of that they fail to meet the statutory definition of trade union. The Board held otherwise in an unreported case involving the Hamilton Construction Association and Builders Exchange, and that view was sustained by the Court in Hamilton Construction Association and Builders Exchange v. OLRB 1963 CanLII 274 (ON HCJ), [1963] 2 OR. 393. There, it was found that Local 18 of the United Brotherhood of Carpenters and Joiners of America included among its membership certain superintendents and non-working foremen who exercised managerial functions in the sense intended by section 1(3)(b) of the Act, but neither the Board nor the Court was persuaded that Local 18 was not a trade union within the meaning of the Act.

40. Finally, OSSTF asserts that in light of the Charter of Rights guarantee of freedom of association, the Board should be loath to restrict the group with whom the occasional teachers (should they so wish) can associate for collective bargaining purposes. OSSTF argues that no such restriction is warranted unless there are compelling reasons of industrial relations policy. No such reasons are apparent here. If anything, the existing framework for teacher collective bargaining suggests that in this context, the potential for conflict between one teaching professional and another has not been regarded by the Legislature as having overriding collective bargaining significance. OSSTF asserts that section 3 should be given a liberal interpretation and any questions concerning the quality of representation or the union's independence are addressed elsewhere in the Act.

41. If these arguments have a certain familiar ring, it is because they are substantially the same as those made by the respondent and OSSTF in the Humewood House case, supra. There, as here, the respondent Board of Education argued that OSSTF was not a trade union within the meaning of the Labour Relations Act. The Board disagreed. Its conclusion can be found at paragraphs 56-61 of the decision:

56. The HEPCO case held that the phrase organization of employees must be read as organization of employees only, having regard to the precision with which the meaning of the word employee is limited by paragraph l(3)(b) of the Act. That reading of the language of paragraph l(l)(p) would exclude from trade union membership not only managerial persons, who would be considered employees but for the deeming provision of paragraph l(3)(b), but also persons who are not in any sense of the word anyone's employee. If that were the intention of the Legislature, then why it did it so carefully use the person in section 3 when describing those who may join and participate in trade unions? The use of that word must at very least contemplate trade unions having members who are not employees because they are unemployed: see Ottawa General Hospital, supra, at paragraphs 24 and 26. While the language of section 3 of the Act does not create for managerial persons a protected right to join and participate in the activities of a trade union, that language is clearly inconsistent with an interpretation of section 1(1 )(p) which requires that the phrase organization of employees be read as organization of employees only. It is noteworthy that none of the decisions which favour the employee only interpretation of section i(i)(p) makes any reference to section 3 of the Act.

57. The HEPCO employee only interpretation of paragraph l(l)(p) not only fails to take the language of section 3 into account, it also comes into conflict with characteristics of organizations commonly thought of as trade unions. We have already observed that craft unions tend to have managerial members, and that an employees only definition would prevent the unemployed from joining trade unions. It must also be recognized that trade unions are often employers themselves; indeed, trade union employees can be and have been the subject of certification applications. In defining a bargaining unit of trade union employees, paragraph l(3)(b) comes into play and those who act on the union's behalf in hiring, firing and directing the work of its employed staff will be excluded as managerial. If paragraph l(l)(p) means what HEPCO says it does, then either those managerial persons would have to give up their union membership, or the trade union would have to give up its managers or its employees or forfeit its status. This is an absurd result.

58. It is important to note also that the Labour Relations Act expressly defines trade union to include provincial, national and international trade unions. Many such organizations exist. Some existed, as OSSTF did, before the Ontario legislature enacted any collective bargaining legislation; those organizations are not disqualified as trade unions by the fact that their founders were not persons then covered by such legislation. A trade union may function in a number of jurisdictions and under a range of collective bargaining statutes. It is not disqualified as a trade union in Ontario by the fact that its members in those other jurisdictions and under those other statutes are not persons covered by the Ontario Labour Relations Act. It can be expected that the legislature in each such other jurisdiction will have recognized that collective bargaining requires an arms-length [sic] relationship between employees on the one hand and their employer on the other, and that in the interest of both sides it is necessary to put managerial employees on the employer's side of the table in shaping any particular collective bargaining relationship. It may be supposed, therefore, that each jurisdiction and each collective bargaining statute will draw that managerial line or assign the task of line drawing to a tribunal empowered to administer the statute. While the principle of separation of employer and employee interests may be clear, the result of its application may vary from jurisdiction to jurisdiction, from statute to statute and from tribunal to tribunal. A legislature may feel that the various interests involved in collective bargaining generally, or in certain employment sectors in particular, are better served by drawing the managerial line at a point different from that at which this Board might have drawn the line in the same circumstances. It would seem peculiar and, frankly, pretentious if we were to deny an international, national or provincial trade union the opportunity to represent Ontario employees merely because some legislative body or administrative tribunal has required it to represent persons whom we would not, by reason of their duties, have included in a bargaining unit established under the Labour Relations Act. It is one thing to be ever vigilant against the mischief of company dominated unions. It is quite another to insist that those organizations which appear before this Board as trade unions conduct themselves in accordance with our views of membership purity regardless of the consequences to their ability to function in other jurisdictions. When public sector unions (OPSEU, for example) come before this Board for certification under the Labour Relations Act, we do not require of them proof that in their representation of employees under other statutes they have not undertaken the representation of, or accepted as members, persons whose job functions might appear to us to be managerial.

59. We conclude that the phrase organization of employees in paragraph l(l)(p) of the Act does not mean organization of employees only. The mere fact that an organization has in its membership persons whose employment requires them to exercise managerial functions within the meaning of paragraph 1 (3)(b) of the Act will not stand in the way of a finding that the organization is a trade union within the meaning of paragraph l(l)(p) of the Act, if it otherwise qualifies to be so described. We respectfully decline to follow those earlier decisions which held otherwise. We acknowledge and share the concern those earlier decisions expressed about the potential for conflict of interest which can appear when managerial employees are members of trade unions. The need to keep employers and bargaining agents at arm's length is fundamental to the scheme of the Labour Relations Act, but the right of employees on a majoritarian basis to freely choose their bargaining agent is equally fundamental. As a result, it is not for the Board to withhold rights from a freely selected trade union on grounds other than those contemplated by the Act. Sections 13 and 48 speak to actual employer participation and support. A speculative concern about an organization's vulnerability to employer domination no more justifies denial of representation rights than would a concern that the composition of a trade union's general membership, or of another bargaining unit it represents, might divert it from the single-minded pursuit of the interests of the employees in the particular bargaining unit it seeks to represent (see H. Gray Limited, 55 CLLC 18,011, and Canadian Iron Foundries, 56 CLLC 18,027). The Labour Relations Act provides safeguards against the realization of any potential for conflict of interest. By virtue of section 68 of the Act, a trade union which acquires the right to represent the employees in a bargaining unit assumes a duty to act fairly toward those employees in exercising that right, and that will require that the trade union avoid conflicts with the interests of persons excluded from that unit. While managerial membership alone will not trigger sections 13 and 48, the potential application of those sections to the trade union and, consequently, of section 64 to some one or more employers, will throw a spotlight on the reasons for such membership, and on the nature and degree of such members' participation in the affairs of the trade union. In the ordinary case, one would wonder why a person would join an organization devoted to collective bargaining in which it cannot represent him. When he is actively involved in those collective bargaining activities, one's wonder would grow at tolerance by his employer and by the trade union of any apparent conflict of interest, especially when the managerial employee had no protected right to join the trade union or participate in its activities. While it will be a question of fact in each case whether managerial members are acting on behalf of employers, there will be some cases where the absence of any explanation for the managerial employees' membership and active participation in a trade union may support an inference of employer domination. There will be few cases where, as here, the employees' allegedly managerial duties and concurrent trade union membership can be explained by the fact that both are compelled by law. Thus, sections 13, 48 and 68 encourage trade unions to confine the influence of managerial members; section 64 provides a similar incentive to employers. These provisions, together with the bargaining unit's ultimate remedy of changing or terminating its bargaining agent, are the safeguards the legislature has decided to provide for conflicts of interest in a system of free collective bargaining in which the concern for viable and independent bargaining representatives must share attention with the concern for the freedom to choose bargaining representatives on a majoritarian basis.

60. Before leaving this topic, we observe that the characterization of principals' duties for collective bargaining purposes has been the focus of attention on more than one occasion. The Reville committee considered whether or not principals should be excluded from bargaining units under teacher/school board collective bargaining legislation. The question was a difficult and controversial one. There were strong opinions on both sides of the question; the committee members could not agree on an answer. One member felt principals should be and were managerial, and should be excluded from any bargaining unit. The majority accepted that principals were teachers first and foremost and should be able to join with teachers in collective bargaining with boards, but felt they should have the option of forming their own bargaining units if they wished. The legislature ultimately included principals and vice-principals in the teachers' bargaining unit. It cannot be assumed, in the circumstances or at all, that in taking that approach the legislature was oblivious to this important and difficult question and the debate it had engendered. On the contrary, it should be assumed that the provisions of Bill 100 represent the legislature's conscious assessment that the duties and responsibilities of principals are not so managerial as to require their exclusion from a bargaining unit of contract teachers represented in bargaining by branch affiliates within the meaning assigned to that term by the legislation. Indeed, the same legislature which enacted paragraphs l(l)(p) and l(3)(b) of the Labour Relations Act also enacted Bill 100, assigned a collective bargaining role to branch affiliates of OSSTF, decided that principals fell on the employee side of the managerial line, and directed OSSTF's branch affiliates to represent units of contract teachers, including principals. This suggests that the legislature considered OSSTF to be an organization of employees formed for purposes that include the regulation of relations between employees and employers, and reinforces our conclusion that OSSTF fits within the definition of trade union under the Labour Relations Act even assuming, without deciding, that from the perspective of the Labour Relations Act principals might be regarded as exercising managerial functions. This does not mean that the character of principals' duties can never be a relevant consideration in an application before this Board. The fact that the legislature included principals in a bargaining unit of contract teachers established for the purpose of Bill 100 is not determinative of any issue whether persons exercising similar duties in relation to employees covered by the Labour Relations Act should be included in or excluded from bargaining units of such employees established for the purposes of that Act.

61. As we noted earlier, the Board found OSSTF to be a trade union in Board of Education for the Borough of Scarborough, supra, where that question had been put squarely in issue.

By virtue of section 105 of the Labour Relations Act, that earlier finding constitutes prima facie evidence of that fact in these proceedings, and that prima facie evidence has not been rebutted. Accordingly, we find that the applicant is a trade union.

42. We do not think any useful purpose would be served by reviewing the details of the Board's reasoning in the Humewood House decision. That reasoning comprises some thirty-five singled spaced pages, including a thorough review of all of the cases upon which the respondent there relied. The respondent and OPSEU rely on the same decisions in this case. We are not convinced that in this case we should depart from the views and approach found in paragraphs 38 to 61 of the Humewood House decision. However, in view of the nature of the issues raised, we think it appropriate to add a few additional comments of our own.

43. We may begin by reiterating the highly unusual context in which all of these questions arise, and the difficulty which this Board faces in applying the Labour Relations Act not only in a professional context but to a fragment of the education sector over which we generally have no jurisdiction, and for which the Legislature has created distinctive collective bargaining structures and rules. We do not think this background can be ignored, nor, apart from the Humewood House decision, is the established Board jurisprudence of much assistance. The circumstances are unique, and this, in itself, distinguishes the present case from all of the decisions upon which the respondent employer relies.

44. OSSTF is no weak and dependent organization, sponsored by the employer and subject to its influence. Its integrity and independence cannot really be questioned, nor can one give much weight to the respondent's suggestion that its own position could be compromised in its dealing with occasional teachers, if OSSTF were found to be a trade union and certified to represent them. Not only is there no evidence whatsoever that principals, vice-principals and department heads would deal with occasional teachers any differently than they are doing now, but such residual concern on the respondent's part, must be weighed against its own submission that principals and vice-principals exercise significant managerial functions under Bill 100 in respect of contract teachers, and are under a statutory obligation to do so. Yet there was no evidence of the kind of conflict of interest which section 1(3)(b) was designed to avoid. Even assuming that principals and vice-principals have certain administrative and managerial responsibilities, it is significant that the Legislature has decided that they all should be included in the same bargaining unit as other teachers. We do not minimize the importance of preserving the independence of the employees' bargaining agent, but in this unusual context, and from a purely policy point of view, we see no reason to lean towards an interpretation of the Labour Relations Act which would prevent occasional teachers from choosing OSSTF to represent them. If anything, the circumstances suggest that the Board should lean in the other direction.

45. We do not find the language of section l(l)(p) as clear and compelling as the respondent and intervener suggest. Despite the gloss given to the statutory language in the HEPCO decision, the fact is that the Act does not expressly require that a trade union be composed exclusively of employees or of employees only; and since a trade union is not confined to purely collective bargaining functions, one can easily envisage a variety of activities in which non-employee members might wish to engage: co-operative housing programmes, political activity, mutual insurance schemes, etc. Conversely, section 3 of the Act suggests that union membership should be open to persons — not employees — wishing to participate in these lawful activities. Even within the realm of the union's core functions — collective bargaining — it is obvious that from time to time it will number among its members persons who are unemployed, and section 106(2) of the Act recognizes that a union may include among its members persons exercising managerial functions, because the definition of that term can often be subject to debate. Obviously such inclusion should not, in itself, prejudice the organization's status as a trade union.

46. While the respondent employer suggests that there may be serious consequences for employees and their unions if management persons are admitted into membership, there is no evidence that that has been the experience in the education sector, nor in the context of construction trade unions which often permit managers and even small employers to continue to carry their cards against the day that they might have to return to the tools. It would certainly be a surprise to the labour relations community if the Board were to hold that, because of this practice, all of these organizations are no longer trade unions. Yet that is what would flow from the interpretation the respondent and intervener urge upon us. It would also be a surprise to the union, such as the Communications Workers of Canada, which operates in the federal jurisdiction where supervisors are included in its bargaining unit and are eligible for membership. Nor can it be said that because a trade union's membership base is not covered by the Act, it cannot be a union within the meaning of the Act. If that were the case, OPSEU, the exclusive bargaining agent for Crown employees, could not represent employees in the private sector. The word employee in section 1(1 )(p) cannot be restricted to employees covered and defined by the Labour Relations Act or unions like OPSEU or the Quebec-based CNTU, whose origins and membership are in other jurisdictions, could not seek to represent employees under the Labour Relations Act. We do not think OSSTF loses its right to claim status as a union, because, by law, it must include people who are not covered by the Act, and who may exercise managerial functions vis-a-vis employee-members who are covered by the Act. Any anomalies can be effectively contained by sections 13, 48, 64 and 68, rather than the interpretation of section 1(1)(p) urged upon us by the respondent and interevener.

47. Does this shift of focus from section l(l)(p) to sections 13, 48, 64 and 68 represent any retreat from the Board's often-stated concern about company-dominated unions or the independence of the bargaining parties? We do not think so. In our view, those sections provide ample protection should members of OSSTF, acting on behalf of the employer, seek to influence the employees' choice as to whether they should join a trade union or which trade union to join. Of course, it will be a question to be determined in each case whether a member of OSSTF was not acting on its behalf but on behalf of the employer, because it cannot be assumed that even someone in a so-called managerial position will necessarily be acting in the employer's interest when he encourages other employees to join a union. A case in point is Municipality of Casimir, Jennings & Appleby, [1978] OLRB Rep. Feb. 130, application for judicial review dismissed, July 11, 1978 (unreported). There, the lame duck reeve actively solicited support for the union and both the Board and the Divisional Court concluded that the reeve was not acting on behalf of the employer, but actually against its interests. Of course, as the Board noted in the Humewood House decision, supra, the involvement of such persons in an organizing campaign would certainly raise a question which OSSTF or any other union would have to address, and the Board might well question the voluntariness of any membership evidence solicited by such individuals (see Veres Wire Limited, [1976] OLRB Rep. July 337) and might either discount such evidence or exercise its discretion to seek the confirmatory evidence of a representation vote. Under section 68 of the Act, any purported representation of occasional teachers by persons directly involved in their case or unable to faithfully play the role of independent advocate would trigger liability, just as it did in Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643. In that case it was held that the Ontario Nurses' Association breached its duty of fair representation when a union official who had rendered a professional judgment on the competence of a fellow nurse, purported to represent the union in a consequent disciplinary meeting with management. Section 68 presents a potent check on any inclination OSSTF may have to ignore the concerns of occasional teachers or sacrifice their interests to those of other OSSTF members — a possibility mentioned by the Matthews Commission in its report. We are not at this stage prepared to make the assumption that OSSTF or its members would do so.

48. For the foregoing reasons, we are satisfied that OSSTF is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act. It is an organization of employees formed for purposes that include collective bargaining. There is no evidence before us to trigger section 13. We are satisfied, therefore, that the certification application can proceed. It remains to determine how one should apply the Act to the rather unique employment situation of occasional teachers.

VII

The Composition of the Voting Constituency and Bargaining Unit

49. As we have already noted, the Board's jurisdiction in respect of occasional teachers arises only because they have been excluded from collective bargaining under Bill 100, and, in consequence, we are left with the difficult question of how to determine the composition of a bargaining unit which will necessarily be composed almost exclusively of individuals with only a casual attachment to the respondent and an uncertain claim to the work opportunities which the respondent provides. The only individuals with an unequivocal claim to being employees in the bargaining unit at the time the application is made, are individuals actually at work on that date, even though, for the purpose of collective bargaining, they may be quite unrepresentative of the wishes of the occasional teachers who will be embraced by the collective bargaining process. In the construction industry, the Board regards those not actually at work on the application date only as prospective employees until they are actually hired; but we are not persuaded that the construction industry model is applicable in the present circumstances, nor did any of the parties urge us to adopt it. They all argued that it was necessary to develop a new test, to meet the special circumstances of the applications currently before the Board.

50. Outside the construction industry the Board ordinarily takes a more flexible approach to the composition of the bargaining unit, recognizing that there may well be individuals (on layoff, sick leave, maternity leave, etc.) who are not actually at work when a certification application is made, but who should nevertheless be treated as employees in the bargaining unit for labour relations purposes. It is that group to whom the Board looks when determining whether the applicant trade union has the level of support necessary for outright certification or entitlement to a representation vote (see section 7 of the Act). The Board endeavours to give the words employee in the bargaining unit a meaning which is sensible and workable and will appropriately accommodate the individual and collective bargaining interests at issue.

51. What are those interests? They can be simply stated. Employees seeking to organize themselves should be able, with some certainty, to identify the constituency of their fellow employees whom they must organize, and that will be used by the Board when assessing the degree of membership support necessary for certification. On the other hand, there will always be some individuals who are not actually at work on the date the certification application is made, but who will still have a sufficiently substantial employment attachment to justify inclusion in the employee constituency and a voice in the selection of the bargaining agent even though they may not be actively employed in the bargaining unit when a certification application is made. In order to balance these concerns, the Board has developed what is now colloquially described as the 30/30-day rule or the 30/30 rule, which the Board applies for the purposes of determining whether individuals not actually at work on the date the application is made should, nevertheless, be treated as employees in the bargaining unit at the time the application is made. (See: Amplifone Canada Limited, [1967] OLRB Rep. Dec. 840.)

52. In order to meet the requirements of the 30/30-day rule, an employee not actually at work on the application date must have worked at some time in the 30-day period immediately preceding the application and work, or be expected to return to work at some time in the 30-day period immediately after the application date. Of course, like all rules, this one could be considered somewhat arbitrary; however, the fact is that it has withstood the test of time (at least 30 years), and without it or some similar arbitrary rule, it would be impossible to expeditiously process the hundreds of certification applications which come before the Board every year. The 30/30 rule has been regularly and routinely applied in a variety of industrial contexts to the obvious advantage of parties who must make or respond to certification applications. No rule is written in stone; but there is a substantial onus upon any party seeking to persuade the Board to depart from this well-established, useful, and well-accepted practice. That is what the respondent and OPSEU urge the Board to do in the instant case.

53. About two years ago, OPSEU filed the first application for certification involving a bargaining unit of occasional teachers employed, from time to time, by the Board of Education for the City of Toronto (see The Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273). There, as here, there was some concern about the application of the 30/30 rule to the unusual employment context of occasional teachers. In the result, the Board decided not to depart from its established approach. The Board dealt with the arguments as follows:

24. Thus, 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, [1970] OLRB Rep. Dec. 912; Keynorth Limited, [1970] OLRB Rep. July 477; Mobile Cartage and Distributors Ltd., [1968] OLRB Rep. Nov. 814; and West Elgin District High School Board, [1968] 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, [1967] 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....

25. Board 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.

54. Interestingly enough, none, of the parties in the instant case urged the Board to follow the approach in The Board of Education for the City of Toronto - even though OSSTF and OPSEU were both parties in that case, and OPSEU's position was ultimately accepted by the Board. Whether this change of mind results from a reconsideration of the issues involved, now that there are numerous other applications pending before the Board, or from a quest for tactical advantage in the instant case, we need not determine. The fact remains that, in this case, none of the parties were particularly happy with the results of applying the Board's usual 30/30 rule.

55. OSSTF argues that the Board should focus only on the front 30 days, and find that the number of employees in the bargaining unit on the application date includes only those who were actually at work on the application date, or were actively at work during the 30-day period immediately preceding the application date. OSSTF argues that a consideration of the second 30-day period (after the application date) would create insuperable obstacles for organizing occasional teachers. OSSTF argues that in a fluid situation, there can never be a system of perfect democracy. OSSTF asserts that its test would include all long-term occasionals as well as those actively working and indicating an interest in collective bargaining in the period immediately prior to the filing of the certification application. The interest of the numerous other occasionals is simply too remote. OSSTF argues that the Board should not adopt an approach which might inhibit the opportunity of occasional teachers to organize themselves and bargain collectively.

56. OSSTF also argues that, as an administrative matter, many certification applications, and most cases in which a pre-hearing vote is requested, will never have a second 30-day period, because the case simply comes on too quickly. In this respect, The Board of Education for the City of Toronto decision is distinguishable, because the Board expressly noted that any problems in applying the 30/30 rule were mitigated in that case because the second 30-days had passed since the date of the application (see paragraph 27). Counsel for OSSTF also points out that under section 9, membership is determined as at the application date. He argues that a union cannot reasonably be expected to organize persons who have not yet been hired and whose identity cannot possibly be predicted. OSSTF argues that its rights should not be prejudiced by the inclusion in the bargaining unit of persons who are neither working in the unit on the application date or the previous month, and whose re-employment is speculative and unpredictable. OSSTF notes further that, if the Board's usual 30/30 rule is applied, it would be relatively easy for an employer to manipulate its hiring in the back 30 days so as to limit the number of employees whom the Board would consider part of the unit for the purposes of the membership count. All an employer would have to do would be to select other occasional teachers. It would be difficult to detect such manipulation and it is by no means clear whether there would be any effective remedy. In OSSTF's submission, all of these problems can be effectively resolved if the Board treats as employees in the bargaining unit (and voting constituency) only those who were actively employed on the application date or in the 30 days preceding the application date. It is these individuals who have the most immediate attachment to the work place, and it is their views which should be considered in determining whether OSSTF shou¹d be certified.

57. The respondent and OPSEU both urge the Board to take into account the special circumstances of this case, and they, like OSSTF, reject the application of the 30/30 rule. In their submission, the underlying rationale of the 30/30 rule simply has no application, and this is so whether one focuses upon the front or back 30 days. Here, there is no majority or core group of regular employees, with some fringe minority not at work on the date of application by reason of layoff, sick leave, etc. Apart from a few long-term occasionals, all of the individuals potentially affected by this application, and caught by whatever test one applies, will be more or less casual and will have a transitory presence in the schools. In this context, the 30/30 rule does not provide an appropriate test of attachment to the employer which, they suggest, is the significant question for collective bargaining purposes. To take two concrete examples: where is the logic in excluding teacher Bujic, who worked 38 days and Starkman, who worked 25 days, but including teachers Maude and Thompson, who worked only day in the entire year and Colaianni, who worked only two days — albeit on the application date or the immediately preceding 30 days? Likewise, John Pownall would be included for the purpose of the union's membership count and vote, even though he worked only three days in the 1983-84 school year, because one of those days, fortuitously, was the application date. Yet, teachers who worked many more days could be excluded if they did not meet the 30/30 rule, or the front 30 rule proposed by OSSTF.

58. The respondent and OPSEU concede that some rule is necessary for administrative purposes, and that the 30/30 rule may be appropriate in almost all cases. But it makes no sense here. It would unduly restrict the constituency of occasional teachers who have an obvious interest in this certification case. The respondent refers both to the statistics concerning the occasional teachers' employment pattern and the results of the representation vote.

59. It will be recalled that there were approximately 200 teachers who taught at least once during the 1983-84 school year. Some 81 teachers cast ballots in the representation vote, of whom 22 had never taught at all in the school year. A further 24 would be excluded if the Board applied the usual 30/30 rule to the voting constituency. Thus, the collective bargaining interests of 200 or more occasional teachers could be determined by the votes of 35 of them, of whom about a quarter had worked less than 20 days. By contrast, 141 teachers who worked during the 1983-84 school year did not vote. On the Board's usual test only fifty-one of those would have been eligible, because they either worked on the application date or met the 30/30 rule. Of this 51, a dozen had worked less than ten days. Ninety occasional teachers, close to half of the total who worked, would be excluded if the 30/30 rule were applied. Even if one accepts the proposition that for a group of teachers whose employment is casual, one can determine employment attachment by the number of days worked, it is evident that the 30/30 rule will not effectively do so. Moreover, the respondent asserts that it is misleading to equate collective bargaining interest, employment attachment, and the number of days worked. All occasional teachers are occasional workers and the interest of an occasional teacher who works six days in a year are, on the evidence, not that much different from a teacher (the minority) who works more than 20 days.

60. The respondent also points out that, as a practical matter and despite the assumptions in such cases as The Board of Education for the City of Toronto, supra, and Amplifone Canada Ltd., supra, the organizational efforts of the applicant and intervener have not been focused on the local schools, and realistically could not be, because the overwhelming majority of occasional teachers do not have a regular employment relationship, let alone a regular work place. Consequently, OPSEU and OSSTF have both sought to recruit members through newspaper advertisements and other general appeals not centered on particular schools in which the occasionals work from time to time. To the extent that the 30/30 rule is based upon an organizing rationale, that rationale has no application here.

61. The respondent and OPSEU urge the Board to reject the 30/30 rule, the OSSTF position, and the narrower rule applied to casual workers in the construction industry, which would limit the scope of the bargaining unit to those employees actually at work and literally in it on the application date. In their submission, this latter, literal, and legalistic test, may be technically correct in the construction industry, and the 30/30 rule may be useful in other contexts, but here it would ignore the interests of a large number of occasional teachers who might not meet the rule, but who are clearly interested in the outcome of this application and may even have appeared to cast a ballot. The respondent and OPSEU asserted initially that the bargaining unit and voting constituency should consist of all occasional teachers who have worked at least one day in the school year (September to June) by the time the application was made. This was described as a test of proven availability, which would exclude those individuals on the call-in list who had never actually been called to work. Subsequently, counsel for OPSEU proposed a new theory which, he said, made more sense, given the sporadic nature of the occasionals' employment and the fact that if the application for certification were made early in the school year there would have been little occasion to call upon the services of any of the supply teachers on the list. In the early months of the school year, the test of proven ability originally enunciated would not yield a representative grouping of occasional teachers. Counsel for OPSEU proposed that there should be a two-fold test, depending upon when the application for certification was made. If the application was filed during the early part of the school year — September or October — the grouping for the purpose of determining the union's membership position, and any consequent representation vote, should include all those occasional teachers who had actually worked in that academic year, together with anyone currently on the list of persons actually interested in employment, who had worked during the preceding academic term (January to June). If the application were made later in the school year, the original test of proven availability could be applied: i.e., all those who had worked at least one day in that academic year prior to the application date. In both cases, for the purposes of any representation vote, the test for voter eligibility should be whether the individual had worked at least one day in the academic year prior to the day on which the vote is directed — although, it might be necessary in some cases to delay the vote if the application were made at the beginning of the academic year. Counsel for the respondent did not quarrel with this approach except to suggest that November 15th would be a better cutoff date because by that time the respondent would have a better idea about precisely who was actively interested in working and had some likelihood of being employed.

VIII

62. We are called upon in this case to formulate an approach that makes collective bargaining and statutory sense in a situation which the parties themselves readily acknowledge cannot be determined by common law rules as to who is or is not an employee, and which does not fit the rationale for the 30/30 rule which the Board routinely applies in industrial situations. Since the vast majority of employees in the bargaining unit will have only a casual attachment to the respondent, we must determine whose views should be canvassed to determine whether the group as a whole will be entitled to engage in collective bargaining through the bargaining agent of their choice. We could adhere to the 30/30 rule, adopt one of the propositions urged upon us by the parties, or apply some other approach which accommodates the competing interests at issue. Any approach will necessarily be somewhat arbitrary and will entail some difficulties. However, even in this anomalous situation, we are persuaded that there must be a bright line test or the rights of occasional teachers in this and other applications will be lost in a sea of litigation. The parties recognize the need for a uniform and standard approach. That is why they agree that this should be a test case. They disagree as to what the rule should be.

63. Having considered the parties' representations, we are inclined to agree that the 30/30 rule is inappropriate in this context. In so doing, we have not ignored the contrary view expressed by the Board in The Board of Education for the City of Toronto, supra, nor have we ignored the important institutional value of uniformity of approach to similar problems. Parties can, and should, reasonably expect that if a decision has been rendered in an earlier proceeding which is logically related to a later one, the earlier decision will be taken into account. Consistency, objectivity, and predictability are important values. On the other hand, as Professor Laskin (as he then was) observed in Re C. G.E. (1959), 9 L.A.C. 342, the first look at a problem is not necessarily the correct look, nor is it always a desirable policy that it is better that a matter be settled, than that it be settled right. The decision of the Board in The Board of Education for the City of Toronto was a first preliminary look at a novel issue and employment situation; and it appears that the Board did not have before it the detailed evidence of the occasional teachers' employment profile which we have before us in this case. When one examines that evidence, it is clear that the effect of applying the 30/30 rule would be to exclude from the decision-making process a great many individuals whose claim to participate is as strong as many of those who would be included. Accordingly, we are not persuaded that we should apply the 30/30 rule in this application.

64. What is required in this case is a test for employment in the bargaining unit which is sensitive to both the objectives of the statute and the interests of the parties — a test which is simple, certain, easily applied, and which will ensure that a successful union really does represent the wishes of the individuals encompassed by the framework of collective bargaining. Those are difficult objectives to harmonize, given the essentially sporadic nature of the occasional teachers' employment. In our view, the best way of doing so is to adopt a variant of the approach proposed by the respondent and the intervener.

65. There is something to be said for the proposition that, at some point during the school year, it may be possible to identify the core group or occasional teachers who will have a proven attachment to a particular school or board of education. But we are not disposed to engage in an arithmetic or statistical exercise. The situation is complicated enough already without considering, on a case-by-case basis, the precise point when the utilization of particular occasionals will be sufficiently frequent to generate a coherent and identifiable group. Given the essentially casual attachment of almost all of the occasionals, we are persuaded that the bargaining unit of occasional teachers should be defined in more general terms. It should include all occasional teachers actively at work on the application date, as well as all those on the list of individuals actively interested in employment who have worked at least one day in the twelve-month period preceding the application date. This test will necessarily overlap at least two academic terms and will avoid any problems associated with a certification application made early in a particular school year. It is obviously broader than the approach normally adopted by the Board, but, in our view, it is appropriate where the Board is called upon to determine an appropriate bargaining unit of what must necessarily be casual employees. We might note that this approach is not entirely unprecedented and may even be somewhat narrower than that adopted in other jurisdictions. In a case involving the Eugene (Oregon) School District, reported at 97 L.R.R.M. 2625, the United States National Labour Relations Board defined a bargaining unit composed entirely of substitute teachers, but included on the employee list all substitute teachers who were registered in that academic year. The proposal or test we adopt incorporates the respondent's proposition that one should have regard to proven availability as evidenced by actual work experience, and the intervener's observation that this test might not work very well if an application is made early in the school year.

66. The same rule would be applied in the case of a representation vote, except that the temporal reference point will be the date the vote is ordered. We recognize that in an ordinary certification application this may mean that the constituency for the vote may be a little different than the constituency for the count, because between the time the application is made and the time the vote is directed a few new occasionals may be called. But this is always the case, and, in our view, any union concern is adequately met by the rules respecting the mechanics of the vote which we have set out below. This variant of the respondent's test of proven availability may pose some additional burdens upon a union seeking to organize occasional teachers, however, we do not think such burden is unduly onerous; and the broader approach ensures that the decision to certify will be based upon the wishes of a wider segment of the individuals whom the union will be required to represent. As a purely practical matter, we do not see how effective collective bargaining could take place in circumstances where the union's certification was based upon the views of a small minority. Needless to say, this special approach has been adopted to meet the unusual circumstances of occasional teachers, and should not be construed as a signal that the Board will depart from its established practice in other contexts.

IX

The Mechanics of the Representation Vote

67. If the 30/30 rule does not yield a sensible collective bargaining result in the circumstances of this case, neither does the Board's usual approach to the conduct of representation votes, which is based upon the assumption that the best place to conduct the ballot is at the employees' work place. The problem is highlighted by the voter turnout in this particular case. Only about a third of the occasional teachers arguably eligible to vote chose to cast ballots and a quarter of those had never actually worked for the respondent during the 1983-84 school year. The result is that the votes of a small number of occasional teachers could determine whether a particular applicant would be certified, even though that number of supporters could not possibly support effective collective bargaining. And this low voter turnout occurred despite the fact that the Board mailed individual notices to each and every occasional teacher who might be interested in the certification application and have an arguable right to vote. The participation rate was far less than would occur in a typical industrial context where the representation vote is conducted at the work place of the employees. But, perhaps, this is not so surprising. Where employees have a common or customary work place, they have the opportunity to debate the pros and cons of union representation and the union has an opportunity (albeit somewhat limited) to contact them. Here, however, the vast majority of occasional teachers do not have a regular attachment to a particular work place, and it is exceedingly difficult for an applicant union to identify who they are or where they live so that they can be approached away from the place where they might, occasionally, be employed. With only sporadic employment by the respondent and without any real exposure to the organizing campaign (here involving two unions) it might be expected that many occasionals would not take the time to vote.

68. The control of representation votes and the determination of the steps necessary to conduct the election fairly are matters which the Legislature has entrusted to the Board. In discharging that responsibility, the Board must ensure that employees have the opportunity to cast their ballots for or against representation under circumstances that are free not only from interference, restraint, or other coercion in violation of the Act, but also from other elements that prevent or impede a free and reasoned choice. Among the factors that undoubtedly tend to impede that choice in a case such as this, is the dispersion of the electorate and the difficulty in disseminating information with respect to the process and the choices available. An employee who has had an effective opportunity to hear the arguments for and against representation is more likely to cast a ballot, and is in a better position to make a more fully informed choice. Accordingly, we think that it is appropriate in cases such as this to remove the unnecessary impediments to communication.

69. As a practical matter, an employer through his possession of employee names and addresses, as well as the immediate ability to communicate with employees on his premises, is assured of the continuing opportunity to inform the entire potential electorate of his views with respect to trade union representation. On the other hand, without a list of employee names and addresses, labour organizations have no effective method by which they can be certain of reaching many of the occasional teachers. There is no automatic right of access to school premises for the purpose of campaigning and, of course, most of the occasionals do not have a regular work place in any event. The problem is exacerbated in the instant case where occasional teachers have been asked to choose one of two unions or a no-union option. As a result, some of the occasionals may be completely unaware of the union's point of view or the relative merits of the options available to them. Nor do employees holding strong views one way or the other have any means of contacting their fellow occasionals to engage in discussion. Lacking names and home addresses, they have no way of effectively communicating with their peers. This is not to deny the existence of various means by which a party might be able to communicate with a portion of the electorate even without possessing their names and addresses. It is rather to say what seems to us obvious — that the access of all employees to such communications can be ensured only if all parties have the names and address of all of the voters. In other words, by providing all parties with the employees' names and addresses, we maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation, or representation by a particular union (or no union at all), and we minimize the likelihood of anomalous results.

70. In circumstances such as the present case, employee names and addresses are not readily available from sources other than the employer. The names of some employees may be secured with the assistance of sympathetic fellow workers, but, where many occasional teachers are unknown to their fellows, and when most have only a casual attachment to the respondent, let alone a particular school, this method cannot possibly yield the names and addresses of a major proportion of the total complement of occasional teachers. This may well be a burden which a union must bear in the initial organizing stage as it seeks to secure the requisite degree of support to warrant a representation vote, but once that vote has been directed, we see no reason why such information should be withheld. In rejecting the 30/30 rule for what the Board considers a more representative grouping, the Board may have created an additional obstacle which the unions must overcome. However, having crossed the threshold, the policy concern shifts to ensuring a fair and representative election. In our view, that requires a complete disclosure of the names and addresses of potential voters.

71. A requirement that all participants in an election contest have the opportunity to ascertain the names and addresses of voters is not uncommon. In public elections, lists of registered voters are open to inspection and are routinely used by interested parties for the purpose of canvassing. We see no reason why similar opportunities should not be available in a representation vote involving a dispersed group of occasional teachers, especially when that vote may well have a more direct and immediate impact on the voters than any federal or provincial election.

72. While the rule we here announce is primarily predicated upon our belief that the prompt disclosure of employee names and addresses is necessary to ensure an informed electorate, there is also another, quite pragmatic basis for our decision. When the actual voters' list is made available to an applicant union (as it presently is), it will typically contain the names of individuals unknown to the union or its supporters. The reasons for this are in large part the same as those that make it difficult for a union to obtain the names of all employees. With little time and no home addresses with which to satisfy itself as to the eligibility of the unknowns, the union is forced either to challenge all those who appear at the polls whom it does not know, or risk having ineligible employees cast ballots. The effect of putting the union to this choice is to increase the number of challenges, as well as the likelihood that challenges might be determinative of the election result, thus requiring investigation by this Board and potential litigation and delay. Prompt disclosure of employee names and addresses may eliminate a number of challenges based solely on a lack of knowledge as to the voter's identity. Furthermore, bona fide disputes between employer and union over voter eligibility will be more susceptible of settlement without recourse to the formal and time-consuming challenge procedures of the Board, if such disputes come to light early in the campaign, rather than in the last few days or at the polling booth itself. Thus, the requirement of prompt disclosure of employee names and addresses will further the public interest in the speedy resolution of representation questions.

73. The arguments against imposing a requirement of disclosure are of little force, especially when weighed against the benefits resulting therefrom. Initially, we are able to perceive no substantial infringement of employer interests that would flow from such a requirement. A list of employee names and addresses is not like a customer list, and an employer would appear to have no significant interest in keeping the names and addresses of his employees secret, other than a desire to prevent the union from communicating with his employees — an interest we see no reason to protect, at least in the circumstances of this case. Any legitimate interest in secrecy that an employer may have is, in any event, plainly outweighed by the substantial public interest in favour of disclosure where, as here, disclosure is a key factor in ensuring a free and fair election, and the employees in question have already indicated a substantial interest in self-organization. We do not think that to provide the union with employee names and addresses subjects such employees to the danger of harassment and coercion in their homes. We cannot assume that a union seeking to obtain employees' votes in a secret ballot election will engage in conduct of this nature; and, if it does, the Board can always provide an appropriate remedy. We do not, in any event, regard the mere possibility that a union will abuse the opportunity to communicate with employees in their homes as a sufficient basis for denying this opportunity altogether. In this particular case, the electoral grouping is composed of highly educated and sophisticated individuals. We have no doubt that they are quite able to make up their own minds and say no. Indeed, our experience in this series of certification applications is that employees have not complained about union entreaties. Their complaint has been that they did not have enough information about what was going on.

74. For these reasons then, when an application for certification in respect of occasional teachers is made under section 9 of the Act (the pre-hearing vote section), or a vote of occasional teachers is directed under section 7, the respondent employer will be required to file with the Board a list of the names and addresses of all employees known to it to be in the voting constituency. Such list will be available to any person or party with a direct interest in the campaign. Since this is admittedly a new rule in a test case, we are satisfied that it should be applied prospectively only. Further, since most of the occasional teachers will be geographically dispersed, and have no need to visit a particular school, the representation vote should ordinarily be conducted by means of a mailed ballot. While this may build in a little delay, it will enhance the voters' opportunity to conveniently indicate their choice for or against trade union representation. This approach, too, will only be applied to applications in which no vote has yet been directed. While we are satisfied that this approach to the composition of the voting constituency and bargaining unit can fairly be applied to all pending applications, it is unnecessary and inappropriate to set aside votes already taken because a union may not have had the employees' addresses.

75. In view of the foregoing, it will be necessary to reassess the composition of the bargaining unit and the voting constituency in light of the approaches set out above. Once that is done, the Board can determine whether the applicant and intervener have the requisite membership support among employees in the bargaining unit to warrant a counting of the ballots. To this end, a Board Officer is hereby appointed to meet with the parties and endeavour to resolve any remaining disputes concerning the composition of the bargaining unit and voting constituency. The respondent employer is hereby directed to file such additional information concerning its employee complement as may be necessary to apply the one-year rule described in Part VII of this decision.

DECISION OF BOARD MEMBER F. W. MURRAY;

1. I have had the opportunity of considering the majority decision in this matter and must respectfully dissent. In my view, there is no doubt that principals and vice-principals exercise what would be managerial functions within the meaning of section l(3)(b) of the Act, and even department heads have significant influence over the occasionals' critical job interests. Yet these individuals are all active members of OSSTF, which is here seeking to represent those very same occasional teachers. It seems to me that there is an obvious potential conflict of interest. I simply cannot accept the proposition that an employee organization can include managers and, at the same time, be certified to represent those who are managed. While this flies in the face of the arm's length relationship between employees and unions which is at the heart of our collective bargaining system, I am much more concerned with the increased propensity there will be for conflict of interest for the principals, vice principals, and department heads in their role as day to day administrators of the collective agreement on behalf of the school boards, while at the same time required to be members of the OSSTF. Such division of loyalty and responsibility is bound to dramatically dilute their managerial function.

2. Like the majority, I do not think any useful purpose would be served in reviewing the details of the Board's Humetvood House decision. The comments in that case relied on by OSSTF are clearly obiter, as the dissenting member of the panel in that case indicated in his separate opinion. Not only are we not required to adopt the analysis in the Hume wood House case, I do not think we should do so. I prefer the decision of the Board in Hydro Electric Power Commission of Ontario, supra. In my view, the approach in that case is correct as a matter of law and sound industrial relations policy. The case was reaffirmed in Armour Associates Limited, supra, and, as I read it, Children's Aid Society of Metropolitan Toronto, supra. The principles in the Hydro Electric Power Commission of Ontario case are equally applicable here.

3. I would find that the applicant, OSSTF, is an organization which includes managerial persons who, by definition, are not employees under the Labour Relations Act. I would find that, accordingly, OSSTF is not a trade union within the meaning of section l(l)(p) of the Act and, having managerial personnel among its membership, is not entitled to certification. For that reason, its certification application must be dismissed. Whether the occasional teachers wish to be represented by OPSEU or any other bona fide independent trade union is a matter for them to decide, preferably by means of a representation vote.

4. I agree with the majority in the method of determining the voting constituency as outlined in paragraph 65 of the Board's decision.

5. While I note that both unions in this matter were able to show at least an appearance of thirty-five per cent support without any special access to the employees I also agree with the majority decision, particularly in the light of the method adopted to determine the voting constituency, that the special access procedure as outlined in the decision should be made available to interested parties.