Ontario Catholic Occasional Teachers' Association v. Carleton Roman Catholic Separate School Board, 1986 CanLII 1368

[1986] OLRB Rep. September 1200

0812-86-R Ontario Catholic Occasional Teachers' Association, Applicant, v. Carleton Roman Catholic Separate School Board, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members B. L. Armstrong and D. A. Mac-Donald.

DECISION OF THE BOARD; August 26, 1986

1. The name of the respondent in the title of this application is amended to read: "Carle­ton Roman Catholic Separate School Board".

2. This is an application for certification filed on June 19, 1986, in which the applicant has asked that the Board conduct a pre-hearing representation vote.

   3 The applicant claims that the unit of employees of the respondent appropriate for col­lective bargaining in this matter would be described as follows:

All occasional teachers employed by the respondent in its schools in the Regional Municipality of Carleton save and except those employees teaching in schools pursuant to Part XI of the Education Act and those employees in bargaining units for which any trade union holds bargaining rights as of the application date.

In its reply, the respondent describes the appropriate bargaining unit this way:

All qualified and unqualified occasional teachers employed by the respon­dent in its schools in the Regional Municipality of Ottawa-Carleton, save and except those employees teaching in schools pursuant to Part XI of the Edu­cation Act, those employees in bargaining units for which any trade union held bargaining rights as of June 19, 1986, being the date of application, including teachers with probationary or permanent teaching contracts with the respondent.

4. The employment of "teachers" by school boards is governed by several statues, includ­ing the Education Act, R.S.O. 1980 c.129, as amended. The term "occasional teacher" comes from the Education Act, which in subsection 1(1) defines that term as follows:

5. "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 is 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;

[emphasis added]

Subsection 1(1) of the Education Act defines the word "teacher" as follows:

66. "teacher" means a person who holds a valid certificate of qualification or a letter of standing as a teacher in an elementary or a secondary school in Ontario;

As we understand the lexicon of school board employment relations, the word "qualified" means having the qualifications described in clause 66 of subsection 1(1) of the Education Act." On that view, "occasional teachers" are, by definition, "qualified" and the phrase "unqualified occasional teacher" is, strictly speaking, a contradiction in terms. It appears from the material before us that the respondent intends the phrase "unqualified occasional teachers" to refer to unqualified persons employed on an emergency basis (pursuant to section 22 of Regulation 262, as amended) or pur­suant to a letter of permission granted by the Minister of Education, whose duties involve "teach­ing as a substitute for a permanent, probationary or temporary teacher".

5. Collective bargaining between school boards and "teachers with probationary or per­manent teaching contracts" (hereafter referred to as "contract teachers") is governed by the School Boards and Teachers Collective Negotiations Act R.S.O. 1980, c. 464 (often referred to as (“Bill 100") and not the Labour Relations Act. Bill 100 assigns bargaining rights for such teachers to branches of the affiliates of the Ontario Teachers' Federation. In the case of teachers in separate schools (other than those teaching in schools pursuant to Part XI of the Education Act), the rele­vant affiliate is the Ontario English Catholic Teachers Association ("OECTA"). Such teachers would, as a result, be "employees in bargaining units for which any trade union held bargaining rights of as of June 19, 1986" when performing the duties contemplated by their permanent or pro­bationary teaching contracts.

6. At first glance, the parties' disagreement about the bargaining unit description concerns only the inclusion or exclusion of unqualified persons employed to perform the duties contem­plated by the definition of occasional teacher in the Education Act. It appears, however, from the report of the Labour Relations Officer who met with representatives of the parties and from subse­quent written representations filed with the Board by their counsel, that the respondent seeks the exclusion from any bargaining unit of occasional teachers of those of its employees who, in addi­tion to their work as "occasional teachers", teach on a part-time basis pursuant to permanent or probationary teaching contracts. The applicant takes the position that such persons should fall within the appropriate unit of occasional teachers when they perform the work contemplated by the definition of "occasional teacher" in the Education Act. Counsel for the respondent describes the party's disagreement on this issue in the following way:

The application affects three identifiable groups:

(a) qualified occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton;

(b) unqualified occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton;

(c) qualified occasional teachers who are members of another union, name­ly, the Ontario English Catholic Teachers' Association.

The applicant seeks to include in its proposed unit all persons included in (a) and (c) above.

The respondent seeks to include in its proposed unit all persons included in (a) and (b) above.

7. The respondent has filed three lists of employees: a list of 184 persons said to be "quali­fied" occasional teachers who do not have permanent or probationary teaching contracts with the respondent, a list of 56 "unqualified occasional teachers" and a list of 22 persons who are employed both as occasional teachers and pursuant to permanent or probationary teaching con­tracts. The report of the Labour Relations Officer who met with representatives of the parties indi­cates that the applicant challenges 8 of the 184 names on the first-mentioned list. It did not chal­lenge any name on either of the other two lists, but purported to reserve its right to challenge names on the list of unqualified occasional teachers in the event the Board were to decide to include them in the appropriate bargaining unit.

8. Section 9 of the Labour Relations Act provides as follows:

9.-(1) Upon an application for certification, the trade union may request that a pre-hearing rep­resentation vote be taken.

(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were mem­bers of the trade union at the time the application was made, the Board may direct that a repre­sentation vote be taken among the employees in the voting constituency.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the par­ties have been given full opportunity to present their evidence and make their submissions.

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 7(2).

The Board's function at this stage of the proceedings is to make the determinations contemplated by subsection 9(2) of the Act. The Board does not at this point determine the composition of the appropriate bargaining unit. As appears from subsection 9(4) of the Labour Relations Act, that determination is only made after the vote is conducted, when all interested persons will be notified in From 71 of the contents of the Returning Officer's report and of their opportunity to make representations and have a hearing before the Board with respect to any matter concerning the appli­cation for certification or the pre-hearing representation vote. Although the appropriate bargain­ing unit is not determined by the Board until after a pre-hearing vote has been conducted, the p9sitions of the parties with respect to that issue are considered in striking the voting constituency or constituencies at the pre-vote stage, because a pre-hearing vote is of little use unless one can reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board: Scarborough General Hospital, [1984] OLRB Rep. Dec. 1765. This is ordinarily facilitated by defin­ing the voting constituency so as to include all those employees who fall within any proposed bar­gaining unit description and directing segregation of ballots cast by employees who do not fall within every proposed bargaining unit description. It is not always possible to do that. Trade unions organize with a view to the bargaining unit which they believe will be found appropriate by the Board. Where there is a substantial difference between that bargaining unit and the bargaining unit proposed by a respondent employer, the trade union's membership evidence may not be sufficient to create the requisite appearance support under subsection 9(2) in the most broadly defined voting constituency. When such situations arise, it is important to bear in mind that the Board is not obliged to define the voting constituency so as to cover the extremes of the positions taken by the parties: Satin Finish Hardwood Floorings (Ontario) Limited, [1984] OLRB Rep. Nov. 1602.

9, The respondent argues that we should not make any determination under subsection

9(2) at this time for the following reasons:

(1) if the appropriate bargaining unit includes qualified and unqualified occasional teachers as well as those part-time permanent teachers who also teaches occasionals, then the applicant would not appear to have the support of thirty-five per cent of those employees; and

(2) notice of this application has not been given to affected employees, nor to the Ontario English Catholic Teachers Association, of which at least some affected employees are members.

The problem of notice to employees was first raised in the respondent's letter to the Board of June 27, 1986, in which it said it had received notice of this application on June 25th and noted that "al­though the [respondent] Board would technically post the Form 7 notices in all our schools, they should not have been seen by any occasional teachers since the school year is now over." In his sub­missions by letter of August 1, 1986, the respondent's counsel also points to the fact that the inclu­sion or exclusion of members of OECTA is an issue, states that "the problem facing the Board is that because no notice has been posted, the position of the Ontario English Catholic Teachers' Association is not known at this time", and submits that the Board should adopt the following pro­cedure:

(1) Form 7 notices to be posted the first week in the school year commenc­ing September, 1986;

(2) Notice of the Application be directed to the Ontario English Catholic Teachers' Association;

(3) Following posting of notices and any responses and statements which might thereby result, that Dale Gordon or another Labour Relations officer be once again appointed to consider the position of the parties and to determine the appearance of support, based upon those positions.

10. Paragraph 7 of Form 10 - the Reply required of a respondent to a certification appli­cation - asks for the name and address of any trade union known to the respondent as claiming to be the bargaining agent of or to represent any employees who may be affected by the application. In view of the extensive representations by respondent's counsel about OECTA's interest in the matter, it is curious, to say the least, that the answer to paragraph 7 in the Reply filed and signed by the respondent's solicitors is "N/A". Strictly speaking, bargaining rights for those members of OECTA who are employed by the respondent would be exercised by a branch affiliate of OECTA. This Board does not maintain records of the addresses for service of all branches of affiliates of the Ontario Teachers Federation. In this case, however, notice to OECTA of this application was sent by mail addressed to OECTA "c/o Carleton Roman Catholic Separate School Board" at the res­pondent's address, no doubt in the expectation that the respondent would forward it to the address to which it sends its own correspondence with OECTA. In these circumstances, we are troubled by the categorical statement of respondent's counsel that OECTA has had no notice of these proceed­ings. We note that counsel for the applicant asserts that OECTA has had "de facto" notice and has chosen not to intervene. In these circumstances, the respondent is directed to advise the Board immediately, by telegram and letter, of the name and address of the branch affiliate of OECTA which it claims would have an interest in this matter. Upon receipt of that information, the Regis­trar shall send copies of the Board's original notice to OECTA and of this decision to the name and address supplied.

Il. With respect to the matter of notice to employees themselves, we note again that the only determination being made at this stage is whether a pre-hearing representation vote ought to be conducted and, if so, how. The use, if any, to which the results of such a vote may ultimately be put will be decided only after all interested persons have had notice and the opportunity of a hear­ing. Affected employees will be given notice of any such vote and, following the vote, further notice of their opportunity to make submissions and request a hearing by the Board with respect to the application. Notice will be given by mail in accordance with the Board's usual practice on occa­sional teacher applications, and copies of the original Form 7 notice can be added to the material mailed to employees.

12. In the result, OECTA and the affected employees will receive a notice of this appli­cation before any vote is conducted and well before any decision is made which affects the rights of any of them. Any remaining question of the adequacy of notice to employees or to OECTA can be raised at the appropriate time after the vote by those with standing to do so: see University of Ottawa, [1986] OLRB Rep. March 353 at paragraph 7. We do not accept the respondent's submis­sion that the Board's determination under subsection 9(2) should be delayed by reason of problems it imagines other parties may have as a result of the way that notice of this application has been given to date.

13. We also do not accept the respondent's submission that no determination under subsection 9(2) should be made because the applicant does not appear to have the requisite membership support if the voting constituency is defined to include each person who is said to have been employed at the relevant time in either of the bargaining units proposed by the parties. Nor do we accept the submission of counsel for the applicant that it is somehow entitled to a pre-hearing rep­resentation vote in that broadly defined voting constituency because past Board decisions support the applicant's position on the description of the appropriate bargaining unit. That submission ignores the plain language of subsection 9(2). The Board cannot direct a pre-hearing representation vote in a voting constituency in which the requisite membership support does not appear from an examination of the records of the applicant and the respondent. In this case, however, it would not be inappropriate to adopt the applicant's bargaining unit description as the voting constituency for the purpose of a pre-hearing representation vote. It does appear from the records of the appli­cant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in that voting constituency were members of the trade union at the time the appli­cation was made.

14. Accordingly, the Board directs that a representation vote be taken among the employ­ees of the respondent in the following voting constituency:

All occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton, save and except those employees teaching in schools pursuant to Part XI of the Education Act, and employees in any bargaining unit for which a trade union held bargaining rights as of June 19, 1986.

For the purpose of clarity, the term "occasional teacher" in this description of the voting constitu­ency has the meaning assigned to it by clause 1(1) 31 of the Education Act, R.S.O. 1980 c.129, as amended.

15. All employees of the respondent in the voting constituency on July 3, 1986, who have neither voluntarily terminated their employment nor been discharged for cause between that date and the date the vote is taken will be eligible to vote. Ballots cast by any person alleged to be party to a permanent or probationary teaching contract with the respondent will be segregated.

16. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

17. As the result of the vote may be meaningless if the Board ultimately determines that the appropriate bargaining unit for the purpose of this application would include "unqualified occa­sional teachers", the ballot box shall be sealed and none of the ballots cast counted until further order of the Board.

18. In cases of this kind, respondent school boards are required to supply lists of the names and addresses of all eligible voters. This requirement was brought to the respondent's attention when the Board's labour relations officer met with the parties on July 8 and 23, 1986. Her report notes the respondent's agreement that the necessary mailing list and mailing labels will be for­warded to the Board. The respondent is directed to forthwith forward the necessary mailing list and two sets of mailing labels to the Board and to forward a copy of the mailing list to the applicant trade union. The Registrar is directed to include copies of the original Form 7 notice with the material to be forwarded to employees notifying them of the vote arrangements.

19. All other matters relating to the vote are referred to the Registrar.