[1986] OLRB Rep. September 1259

1635-85-R The Canadian Union of Public Employees, Applicant, v. Metropolitan Separate School Board, Respondent, v. Ontario Public Service Employees Union, Intervener #1, v. Ontario English Catholic Teachers Association, Intervener #2

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. H. Wightman and W. F. Ruth­erford.

APPEARANCES: Harold F. Caley, Helen O'Regan and Jack Bird for the applicant; Barry W. Earle and Vincent Nichilo for the respondent; no one appearing for intervener #1; David L. Bloom, Doug Knott and Ed Alexander for intervener #2.

DECISION OF THE BOARD; September 9, 1986

I

1. In this application, the Canadian Union of Public Employees ("CUPE") seeks to be certified as the exclusive bargaining agent for a unit of "full-time" Heritage Language Instructors employed by the respondent school board. The major issue at this point is whether that is an appropriate bargaining unit of employees of the respondent.

2. In its application, CUPE described its proposed bargaining unit as follows:

All employees of the respondent in Metropolitan Toronto employed as Heri­tage Language Instructors, save and except Supervisor [sic], persons above such rank and persons for which [sic] any trade union held bargaining rights on the date of application.

In paragraph 4 of its application, CUPE stated that there were approximately 121 employees in that unit on the application date. In its reply, the respondent stated that there were approximately 392 persons in the bargaining unit proposed by CUPE. While it used different language to describe the exclusion of persons in bargaining units for which trade unions (like the interveners) held bar­gaining rights on the application date, the respondent also took the position that a unit consisting of all Heritage Language Instructors would be appropriate. Representatives of the parties met with one of the Board's Labour Relations Officers. Among other things, they discussed the disparity in their respective estimates of the number of employees employed by the respondent in the bargain­ing unit proposed by the applicant. Since that discussion, the applicant has taken the position that Heritage Language Instructors regularly employed for not more than twenty-four hours per week should be excluded from the unit for which it seeks certification in this application. The respondent maintains that the exclusion of any Heritage Language Instructors would be inappropriate.

3. When this application first came on for hearing before us, we expressed concern that a uttit limited to Heritage Language Instructors might be the equivalent, in the education sector, of am industrial bargaining unit limited to a single job classification or department, which is ordinarily regarded as inappropriate in the industrial context. We advised the parties that we required in Formation about the terms and conditions of employment of all of the respondent's unorganized employees, and particularly those employees who might be described as "instructors", before mak­ing any bargaining unit determination. The hearing was adjourned to a later date, in order to give the parties time to prepare such information and to give notice to the respondent's employees of the possibility that the unit found appropriate in this application might include employees other than Heritage Language Instructors.

II

4. The respondent was party to six collective agreements at the time this application was filed. Three of those agreements were with locals of the applicant CUPE. Local 1280 represents a unit of employees "engaged in maintenance, services and plant operations." Local 1328 represents a unit of "office, clerical and technical employees" and a separate unit of "teacher aides.. .save and except. ..persons regularly employed for not more than twenty-four hours per week." Local 590 of the intervener Ontario Public Service Employees Union ("OPSEU") represents a unit of "psychol­ogists, psychometricians, social workers, speech pathologists, court workers, interpreters, com­munity liaison officers and research assistants." Pursuant to the School Boards and Teachers Col­lective Negotiation Act, R.S.O. 1980, c. 464 ("Bill 100"), branch affiliates of the Ontario English Catholic Teachers Association ("OECTA") and L'Association Des Enseignants Franco-Ontariens have bargaining rights with respect to all employees of the respondent who are "teachers" within the meaning of clause 1(m) of that Act, and those branch affiliates have together negotiated a sin­gle collective agreement with the respondent. The term "teacher" in clause 1(m) of Bill 100 does not include "occasional teachers" as defined by paragraph 1(1) 31 of the Education Act, R.S.O. 1980, c. 129 as amended. The Metro Local of Ontario Catholic Occasional Teachers' Association represents all occasional teachers employed by the respondent.

5. In the respondent's view, the following categories of employees are unrepresented:

• Heritage Language instructors

• English as a Second Language instructors

• Citizenship instructors

• Adult Up-grading Class instructors

• Student supervisors

• Itinerant, non-academic music instructors

• Librarians employed at the respondent's administrative office

• Swimming instructors

• Change room attendants

• First and second language monitors

• Part-time teacher aides

• "Supply" teacher aides

• Summer school instructors.

Nearly all summer school instructors, and a substantial number of Heritage Language Instructors and English as a Second Language ("ESL") Instructors, have the qualifications of a "teacher" within the meaning of paragraph 1(1) 66 of the Education Act. OECTA takes the position that such employees (referred to by the parties as "Ontario Qualified teachers" and referred to here as "certified teachers") fall within the bargaining unit assigned to it by Bill 100 and would necessarily be excluded from any unit of employees over which this Board could have jurisdiction under the Labour Relations Act. The statutory interpretation on which OECTA relies in taking that position seems consistent with the interpretation of the majority decisions in Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 and Ottawa Board of Education, [1985] OLRB Rep. 1139, both of which are currently the subject of applications for judicial review in which the Divisional Court has reserved its decision. The applicant appears to accept OECTA's position. The respondent does not accept OECTA's position, but has chosen not to dispute it in this appli­cation. In any event, the proper composition of the appropriate bargaining unit in this application was argued on the basis that the unit would not include any certified teacher.

6. Material filed by the respondent indicates that the Ministry of Education implemented a Heritage Languages programme in 1977, "to help students from Ontario's many ethnic groups retain a knowledge of their mother tongue and continuing appreciation of their cultural back­ground, as well as to provide a new language learning opportunity for others." This programme "is tended for elementary school children whose parents wish them to attend language classes out­s de the regular school programme, after school, at weekends, or, when numbers permit, by e tending the required five hour school day." School boards which implement Heritage Language programmes are provided with Ministry funding for that purpose. These programmes are desig­nated as "continuing education classes" under section 9 of Regulation 262, the general regulation under the Education Act governing elementary and secondary schools. From an employment per­spective, the significance of characterizing Heritage Language instruction as part of a continuing education programme is found in subparagraph 5 of section 9 of that Regulation, which provides an exception to a general requirement that school boards employ only certified teachers to teach:

A board may employ a person who is not a teacher to teach in a continuing education class a course that is not to be recognized for credit provided such person holds qualifications accept­able to the board for such employment.

Courses which are "recognized for credit" are courses for which the Ministry of Education would give credit toward a secondary school leaving diploma. Courses offered below the grade 9 level are not "credit" courses.

7. Where there is sufficient parental support for so doing, the respondent will extend the school day at a particular school by 30 minutes so that pupils attending that school can receive Her-age Language instruction during that extended school day for a total of two and a half hours per eek. Pupils for whom Heritage Language instruction is not available on that basis may obtain such instruction from persons paid by the respondent to instruct at various community centres out­side school hours on Saturday mornings or, in the case of Polish language instruction, on weekday evenings, in a single, weekly, 2-1/2 hour class. In the 1984-85 school year, three languages - Italian, Portuguese and Ukrainian - were offered on an "extended day" basis to nearly 27,000 pupils in 63 schools by 106 instructors. Those three and 12 other languages were offered in Saturday morning or Tuesday or Thursday evening, in the case of Polish) programmes to approximately 6,700 stu­dents in 267 classes. It appears that these classes were held at approximately 60 "centres" in the Metropolitan Toronto area and that the number of instructors regularly involved in these program­mes would be about the same as the number of classes. For convenience, these two methods of delivering Heritage Language instruction will be referred to as the "extended day programme" and the "Saturday programme" (which misdescribes, but is meant to include, the Polish Heritage Lan­guage classes conducted on weekday evenings). It is the respondent's uncontradicted assertion that the content of the Heritage Language programme is the same in the extended day programme as it is in the Saturday programme. The terms and conditions of employment of instructors in the two programmes are different, however. In the course of their analyses of the employment of Heritage Language instructors, the parties identified seven categories of such instructors:

• instructors teaching full-time (30 hours per week) in the extended day programme

• instructors who work regularly in the extended day programme on a less than full-time basis (referred to as "percentage contract")

• instructors teaching in the Saturday programme

• instructors who work on a percentage contract in the extended day pro­gramme and also teach in the Saturday programme

• instructors in the Saturday programme who also act as supply teachers for the extended day programme

• persons who may be engaged as supply instructors for the extended day programme

• persons who may be engaged as supply instructors for the Saturday pro­gramme.

8. Although it is not necessary for those who teach Heritage Language classes to be certi­fied teachers, that has been the recommendation of various committees and is the respondent's preference. On the application date, there were 23 certified teachers among the 91 persons who taught Heritage Language classes for more than 24 hours per week, and (excluding supply teach­ers) 31 certified teachers among the 228 persons who regularly taught such classes less than 24 hours per week. Certified teachers can and do move from the Heritage Language programme (par­ticularly the extended day programme) into employment in the respondent's "regular" school pro­gram, where statutory teacher qualifications are ordinarily mandatory. Conversely, those without the statutory qualifications do not have that prospect.

9. Although the instructors with which we are concerned here are not certified teachers, they have academic and other qualifications for the teaching of a particular Heritage Language class. Their rate of pay is a function of the extent of their qualifications. Since the salary grid for teachers covered by the Bill 100 agreement and its predecessors deals with differentials in qualifica­tions, the rates of pay of Heritage Language instructors were originally determined with reference to that grid and, until recently, subsequent percentage increases in the rates of pay for Heritage Language instructors have pretty well kept pace with those negotiated for teachers covered by the Bill 100 agreement. In the extended day programme, basic pay for instructors (other than "supply" instructors) takes the form of a salary. Supply instructors in the extended day programme are paid a "daily rate". Compensation for regular and supply instruction in the Saturday programme is paid as an "hourly rate". Salaried instructors receive benefits similar to those enjoyed by teachers cov­ered by the Bill 100 agreement, except that their dental plan provides only 85 per cent coverage (as opposed to 100 per cent coverage under the Bill 100 agreement) and pension contributions for instructors who are not certified teachers are made to the OMERS plan and not the teachers' superannuation fund. Daily and hourly rated instructors do not receive such benefits. A full-time instructor in the extended day programme would work from 9:00 a.m. to 4:00 p.m. with a one hour lunch break each day, five days per week, for a total of 30 hours per week of employment in a school or schools. Some salaried instructors in the extended day programme are engaged on a part-time or "percentage contract" basis to work a specified percentage of a full-time work load. In theorv, such an engagement could be for any percentage, even 10 per cent. In practice, the respon­dent has difficulty finding people to take lower percentage contracts. The respondent's witness could only recall two 40 per cent contracts, and all others have been at or above 50 per cent. A "percentage contract" instructor is paid a pro-rata portion of the full-time salary for someone with similar qualifications and gets the same benefits. The hours worked by extended day Heritage Lan­guage instructors may be divided between two (or, occasionally, three) schools. Extended day Heritage Language instructors are encouraged to have the same sort of involvement in extra curricular activities as the teachers at the school (or schools) where they instruct.

10. The respondent provides instruction in English as a Second Language ("ESL") to chil­dren during the regular school day and to adults in day and evening classes. ESL classes for chil­dren in the regular day school are all taught by Bill 100 teachers who would be excluded from any unit we might devise in this matter, so the evidence before us did not address in any detail that aspect of the teaching of ESL. At the relevant time, the respondent had 91 employees ("ESL instructors") teaching English as a Second Language to adults. A majority of these are certified teachers. ESL instruction is offered both in schools and in community centres. As with Heritage Language instruction, this ESL instruction is part of the continuing education programme. The hours of work of ESL instructors vary depending on the number of classes they teach. Evening classes, for example, last for two hours and are offered four evenings a week. An ESL instructor who instructs only in the evening would not work more than eight hours per week. Because of the hours of instruction available to be performed during the day, an ESL instructor could work as m my as 25 hours per week. The number of hours actually worked by day time ESL varies. All ESL instructors are paid the same hourly rate, regardless of differences in qualifications, and receive no benefits.

11. The respondent also offers citizenship instruction as part of its continuing education prngramme. These classes are offered in the evenings at various centres, usually schools. A course of citizenship instruction lasts for six to eight weeks and each evening class lasts for two hours. A citizenship instructor could work no more than four evenings per week and, so, would work a max-in um of eight hours per week. Many of the citizenship instructors are people who have applied for but not received positions as Heritage Language instructors. All citizenship instructors are paid the same hourly rate and receive no benefits.

12. Although such classes were not in operation at the time this application was filed, the respondent does offer adult upgrading ("Adult Basic Literacy and Numeracy") classes as part of its continuing education programme. In previous years, these were evening classes of 2 hours duration taught by instructors who received an hourly rate and no benefits. The witness who gave evidence or behalf of the respondent indicated that the respondent's adult upgrading programmes were being "revamped", and he was not sure whether this would result in any change in the terms and conditions of employment of adult upgrading instructors.

13. The respondent's summer school classes are also part of the continuing education pro­gramme. Summer school involves instruction of school-aged children in subjects which are also taught to such children during the regular school year. The teaching of credit courses at the high school level is a major part of the summer school programme. All but six of the 516 teachers employed in the respondent's 1985 summer school were certified teachers. It is not apparent what subjects those six taught.

14. Itinerant Non-Academic Music Instructors are professional musicians employed by the respondent to teach music classes in certain of its schools. These classes are not classified as contin­uing education, but do fall under the ultimate supervision of the Curriculum and Special Services Department, which is responsible for continuing education programmes. These instructors are not certified teachers. They have a variety of work schedules. An Itinerant Non-Academic Music Instructor may teach in one, two or three schools at various times, for between three and six hours per day, one to five days per week. As of the application date, 12 of the respondent's 28 Itinerant Non-Academic Music Instructors worked more than 24 hours per week. All of them are paid on the basis of an hourly rate. If they work more than 14 hours per week, they also receive benefits similar to those enjoyed by salaried teachers.

15. The respondent's administrative structure has two main branches, which are labelled "Academic" and "Business & Finance" on its organizational chart. The Business and Finance side deals with such matters as Finance, Computer and Administrative Services, Buildings and Plant, Real Estate and Planning. The employment relations of "non-teaching" personnel such as those in Local 1280's bargaining unit, are dealt with by a section of the Finance department. The Academic side has four departments: Elementary, Secondary, Curriculum and Special Services and Teacher Personnel. The Teacher Personnel department deals with employment matters on the Academic side, including the negotiation and administration of the collective agreement covering its 5600 to 5800 Bill 100 teachers, the collective agreement covering occasional teachers, the collective agree­ment with OPSEU and the agreement with CUPE covering full-time teacher aides. With respect to unorganized employees, the Teacher Personnel department is involved in the hiring and firing of Heritage Language instructors, ESL instructors, Citizenship instructors, Adult Literacy and Num­eracy instructors, Summer School instructors and Itinerant Non-Academic Music instructors. The school principal deals at first instance with supervision and discipline of instructors employed in a school during the school day. For instructors in "centres", this function is exercised by an Instruc­tor-in-charge who reports to a supervising principal with responsibility for three or four centres. In these matters, school principals report to a regional superintendent and supervising principals report to the superintendent in charge of the programme in which the instructor teaches. In the end, unresolved disciplinary matters involving any of these employees are dealt with by the Teacher Personnel department.

16. Although such employees do not "teach", the Teacher Personnel department also hires or is involved in the hiring of student supervisors, teacher aides and two librarians employed as resource persons at the respondent's administrative offices. The need for student supervisors arises at schools at which the school day has been extended to accommodate Heritage Language instruc­tion. Not all pupils take such instruction. Those who do not must be supervised during the periods in which their classmates are receiving such instruction. Student supervisors perform that function. Some schools also employ student supervisors to supervise the lunchroom during the lunch hour. Student supervisors are employed for a maximum of 20 hours per week. They require no particular academic qualification. All of them are paid an hourly rate. Regular part-time teacher aides receive an appropriate percentage of the salary of full-time teacher aides and a range of benefits. Supply teacher aides are paid a daily rate and receive no benefits. Teacher aide salaries and daily rates are a function of qualifications.

17. The non-teaching personnel section of the respondent's Finance department hires or is involved in the hiring of swim instructors, change room attendants and first and second language monitors. The swim instructors attendants are involved in the provision of two consecutive 14-week periods of swimming instruction during the first six months of each calendar year. This is part of the respondent's Outdoor Education programme which is the responsibility of one of the assist­ant superintendents in the Curriculum and Special Services department. The hours of work of the instructors could vary from three hours per day to 25 hours per week. Change room attendants supervise the change rooms at premises where swim instruction is provided, during the times when the respondent rents premises for those purposes. Swim instructors and change room attendants are paid (different) hourly rates, and neither group receives any additional benefits. First and sec­ond language monitors are university level language students whose employment by school boards is funded by a Federal Government programme. Their function in the respondent's schools is to "Monitor" the teaching of the French language. They do no teaching themselves; indeed, it is a c9ndition of the Federal Government funding that these monitors do not teach. The respondent's witness was hard pressed to say what they did do, other than sit and listen. He suggested they night assist with a field trip. First and second language monitors "work" six to eight hours per week.

III

18. As the Board observed in Kidd Creek Mines Ltd. [1984] OLRB Rep. March 481 at paragraph 50:

……..the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What is means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purpose of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered....

The various and often competing considerations which the Board takes into account in making bar­gaining unit determinations have been described in a number of Board decisions. The following passage from Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, provides a useful review of those considerations:

13. The concept of a bargaining unit performs two quite distinct functions in labour relations law. In order to be certified, a trade union must enjoy the support of a majority of employees in a bargaining unit. The unit serves as an electoral district in this setting. After a union is certi­fied, the bargaining unit found by the Board to be appropriate strongly influences the conduct of collective bargaining. Although the parties sometimes vary this unit description, it is frequently simply reproduced in the recognition clause in a collective agreement.

14. A trade union may experience unsurmountable difficulties in trying to organize employees in a unit that is broadly defined to embrace employees who are geographically dispersed or per­form substantially different jobs. As one of the fundamental objectives of the Labour Relations Act is to assist employees to join together for collective bargaining, this Board has been reluc­tant to establish units which are so broadly based that they defy organization. See Ponderosa Steak House, [1975] OLRB Rep. Jan. 7. The public policy of facilitating organization is a two-edged sword. A trade union may propose a unit defined so as to leave unrepresented a group so small that they have no real chance of entering the world of collective bargaining alone. In these circumstances, the Board expands the proposed unit to include the employees in question, even though the result may be to dilute support for the union to the point that the application is dis­missed. See Board of Education for the City of North York, [1982] OLRB Rep. June 918 at paragraph 7.

15. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [1967] OLRB Rep. Sept. 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, [1974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a fragmented structure.

16. A proliferation of bargaining units increases the risk of unnecessary work stoppages. The likelihood of a strike occurring grows with the number of rounds of negotiations and may be fur­ther increased by competitive bargaining between two trade unions. The potential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employment, though they may stand to gain nothing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

17. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers - designed to enhance the job opportunities of employ­ees within the walls - that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these barriers may close natural lines of job pro­gression to the detriment of all concerned. A fragmented bargaining structure also inevitably spawns jurisdictional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnecessary duplication of effort. All of these concerns - work stoppages, restricted employee mobility, jurisdictional dis­putes and administrative costs - favour consolidated bargaining structures, although the force of each vector varies from case to case.

18. But the community of interest among employees may point towards either a broadly based structure or separate bargaining units. In this context, the word interest, in the phrase com­munity of interest, refers to the bargaining objectives of the employees in question. The most important determinate of those objectives is the work performed. Skills and terms and condi­tions of employment are also relevant, but these factors are largely derived from the nature of work. In deciding whether to include a population of employees in one bargaining unit or to divide them into separate units, the Board has recognized that within a single unit there is a tendency to compress existing differentials in wages, benefits and other work rules. People who perform the same, or substantially similar, work are likely to have similar aspirations concerning terms and conditions of employment. And a strong argument can be made that they ought to be treated in the same way. Equal treatment is fostered by including all such employees in one bar­gaining unit. Conversely, employees whose jobs differ radically from the work of their fellow employees have a legitimate claim to different terms and conditions of employment. If they are pressed into one large unit, the logic of collective bargaining is bound to erode existing differen­tials. Those on the short end of the stick not only have a compelling grievance but also may cause disruption. And an employer may experience difficulty in recruiting for jobs in which the terms and conditions of employment are less attractive than elsewhere. Separate bargaining units may alleviate these problems. However, not all differences between jobs are this funda­mental. As a single collective agreement permits of some variation in terms and conditions of employment, it can embrace employees whose jobs differ to some degree, without generating undue dissatisfaction. When entertaining an application by a special interest group for a sepa­rate bargaining unit, the Board must also bear in mind that these employees would not achieve complete autonomy by winning a separate unit, because it could not be insulated from the forces of pattern bargaining exerted by neighbouring units. The challenge is to decide what differences between jobs are of sufficient magnitude to justify the creation of separate bargaining units, with their attendant disadvantages. In other words, a balance must be struck between the com­peting considerations that bear upon the creation of a viable bargaining structure.

19. The design of bargaining units becomes even more complex when the focus of attention is expanded to include not only ongoing collective bargaining but also organizational concerns. The optimal unit for long-term bargaining may be larger than the grouping within which a trade union can be reasonably expected to obtain the level of employee support necessary for certifi­cation in the short-run. In other words, there is an inherent stress lurking within the concept of an appropriate bargaining unit because it performs two very distinct functions. How has the Board responded to this industrial relations conundrum? The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination. But the Board declared that self-determination would not always come out on top. One example used to make this point involved an employer operating fast food outlets at several locations in a municipality and employing at each a substantially smaller number of employees than worked at one K Mart store. The Board strongly hinted that an application for a bargaining unit comprised of one out­let would be rejected.

20. The creation of a viable bargaining structure is the only objective when employees have ready access to collective bargaining whatever the unit configuration - i.e. when a single large unit will not unduly impede organization. The Board has often been called upon to reconcile the claims of special interest groups with the considerations that favour a consolidated bargaining structure. There is a long-standing practice of segregating plant and office employees in separate units in recognition of their divergent interests. See H Gray Limited, 55 CLLC 18,011. But bar­gaining units consisting of employees in one particular classification or department are not gen­erally considered by the Board to be appropriate because such small units entail excessive frag­mentation. See Corp. of the City of Barrie, [19741 OLRB Rep. Nov. 813. And in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, paramedical personnel were included in the same hospital unit as professional staff. In that case, the Board said:

Rational solutions lie in the careful examination of evidence for significant differences in community of interest between occupational groupings bearing in mind the struc­tural requirements for effective collective bargaining and labour relations. At the risk of being repetitive we think it important to observe that it is natural for certain group of employees to be apprehensive about the outcome of collective bargaining if their occupation does not dominate a bargaining unit in sheer numbers and seldom is the Board confronted with applications for certification affecting employees with identical interests, abilities and backgrounds. This, if the Board was to be preoccupied with these apprehensions an unmanageable proliferation of potentially ineffective bargain­ing units would be the likely result. Accordingly, the Board must concern itself with the only significant differences between employee interests and these significant dif­ferences must result in practical bargaining unit demarcations - practical in the sense that demarcations must provide efficient answers to like cases; there must be reason­able assurance that they can withstand the passage of time; and practical in the sense that sound collective bargaining relationships can be built upon them.

21. Can the interests of employees who perform the same work, but on different temporal basis, diverge sufficiently to require the certification of separate units? Full-time and part-time employees, who often perform the same tasks, are always separated because they do not share a community of interest. As was said in Toronto Airport Hilton, [19801 OLRB Rep. Sept. 1330, at paragraph 6:

This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time employees and students, on the one hand, do not generally share a community of interest since the former are pri­marily concerned with maintaining a convenient work schedule which permits them to accommodate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability, and other benefit plans' extensive senior­ity clauses; and other long-term benefits.

22. But the Board has consistently refused to segregate permanent employees from those employed on a casual or temporary basis. Sydenham Hospital, [1967] OLRB Rep. May 135; Centre Gray General Hospital, [1968] OLRB Rep. Mar. 1172; United Counties of Northumberland Durham, [1968] OLRB Rep. Dec. 915; Oshawa General Hospital, [1970] OLRB Rep. Jan. 1218; Chappels Stores Ltd., [1970] OLRB Rep. June 313; Board of Education of Borough of Scarborough, [1975] OLRB Rep. Sept. 657; Spramotor Ltd., [1976] OLRB Rep. 215; Board of Education of Borough of Scarborough, [19801 OLRB Rep. Dec. 1713; and Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273. (Only seasonal employees in the canning and tobacco industry have been excepted from this rule. See Melner Manufacturing Ltd., [1969] OLRB Rep. Mar. 1288.) This has been the Board's policy even though the interests of these two groups of employees sometimes diverge. Consider two full-time employees, one hired for an indefinite term and the other engaged occasionally over a period of few months. The temporary/full-time employee is likely to want terms and conditions of employment different than the permanent/full-time employee for much the same reasons as a part-time worker does. But some limit must be placed upon the number of bargaining units in order to avoid undue fragmentation. Another reason for not creating yet another unit for temporary employ­ees is that one cannot always forecast whether an employee's term of employment will turn out to be temporary or permanent. An employee is often hired with a promise of work for a fixed term coupled with the possibility of continuing to work thereafter. In this setting, a person's bar­gaining objectives change slowly over time as he or she begins to perceive a permanent nexus with the employment relationship. Consequently, there is no neat division between employees who see themselves as temporary and those whose self-perception has a permanent hue.

23. The Board's practice of separating full and part-time workers into separate bargaining units was discussed at length in Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, where the Board considered the appropriateness of excluding either "persons reg­ularly employed for not more than 24 hours per week" or "persons employed on a casual and tem­porary basis" from a unit of "clerical, technical employees, teacher aides and cafeteria aides":

24. It was the respondent's submission that on the evidence presented the Board should find a community of interest between the full-time and permanent part-time employees and that the Board's usual approach to employees so employed ought not to prevail. Counsel submitted that the Board's usual separation of part-time and full-time employees was based on employment relations in an industrial context and had no application to the white collar office setting of the respondent. On the other hand, the respondent submitted that casual or temporary employees had no community of interest will full-time staff and ought to be excluded from any appropriate bargaining unit.... The applicant union, on the other hand, submitted that it had relied on the Board's usual practice in organizing the respondent's employees and that, in any event, the facts before the Board were not exceptional and deserving of special treatment.

25. The Board recently dealt with a similar request to review its bargaining unit configuration policy on part-time and full-time employees in Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330. The board outlined the purpose of its usual approach in these kinds of cases in the follow­ing terms:

The Board's general practice concerning exclusion of part-time employees and stu­dents from full-time bargaining units is set forth in Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. Mar. 324. (See also The Post Printing Company Ltd., a division of Thomson Newspapers Limited (Leamington), [1966] OLRB Rep. Mar. 930; Premier Plastics Limited, [1969] OLRB rep. July 508; Wilson-Monroe Company Ltd., [1973] OLRB Rep. Dec. 647; and The Beacon Herald of Stratford Limited, [1975] OLRB Rep. Feb. 103.) This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time employees and students, on the one hand, and full-time employees, on the other hand, do not generally share a community of interest since the former are primarily concerned with maintaining a convenient work schedule which permits them to accommodate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability, and other benefit plans; extensive senior­ity clauses; and other long-term benefits. See, for example, Leon's Furniture Limited, [1976] OLRB Rep. May 232, paragraph 5, in which the Board stated:

we have learned through experience in such applications that part-time employees do not share a community of interest with full-time employees in many aspects of the collective bargaining scenario. More precisely part-time employees are more pragmatically concerned with immediate as opposed to long-term benefits with respect to improving their terms and conditions of employment. In applying this proposition to more practical issues the part-time employee usually prefers to sacrifice long-term pen­sion, medical and other welfare benefits for a more substantial increase in wages or a longer vacation period. The nature of seniority provisions con­tained in a collective agreement with respect to promotions, transfer and lay-offs does not always assume the same degree of significance to the part-time employees as it would to the full-time employee. In other words, the Board has discerned a natural, inevitable schism in measuring the com­munity of interest between the two categories of employees that invite sep­aration into peculiar bargaining units

For the foregoing reasons, part-time employees and students generally tend to have less initial interest in collective bargaining. Moreover, since the union organizing cam­paign may give rise to considerable uncertainty and apprehension among part-time employees and students with respect to the continued accommodation of their partic­ular needs and desires for a convenient work schedule and maximum short-term remuneration, they are prone to oppose applications for certification. Such opposition could preclude full-time employees from engaging in collective bargaining if the Board generally exercised its discretion under section 6(1) of the Act in favour of bar­gaining units which included not only full-time employees but also part-time employ­ees and students. Accordingly, the Board's practice concerning part-time employees and students is not only a policy designed to avoid difficulties which may arise where groups with separate communities of interest are included in a single bargaining unit but is also an organizing rule which promotes public interest, identified in the pream­ble of The Labour Relations Act, in furthering harmonious relations between employ­ers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

12. We are of the view that the case before us presents much less compelling evidence for the requested inclusion of the so-called permanent part-time employees than existed in the Toronto Airport Hilton case. The employees in question work precisely one-half the hours of full-time employees and this fact is usually the critical advantage flowing to those employees attracted to part-time work. It is this reality that allows them to accommodate the other important aspects of their lives in a much more substantial way than full-time employment allows. For example, a 1976 study revealed that key reasons given for working part-time included: "going to school", "personal or family responsibilities" and "not wanted to work 'full-time'." See Robertson, Part-time Work in Ontario: 1966 to 1976, Research Branch, Ontario Ministry of Labour, August 1976, Study No. 20, page 18. The fact that part-time employees perform the same work under the same conditions as full-time employees and the fact that their terms and conditions of employment are similar are not unusual facts in pre-collective bargaining employment patterns and pale in comparison to respective attachments to the work place of full and part-time employees. As the panel in Toronto Airport Hilton, supra, indicated, it is this Board's experi­ence that part-time employees have less initial interest in collective bargaining than do full-time employees because of the aforementioned attraction of part-time work. Indeed, it is our opinion that collective bargaining would have been impeded for entire industries had this Board taken any other view. It is uninstructive to point to situations where parties are not providing for part-time and full-time employees in one collective agreement (and even here many qualifications have to be inserted). This is the end result of collective bargaining, after a relationship has matured and after the parties have come to an understanding over the proper balance of full-time to part-time work. In fact, without such an understanding, full-time and part-time employ­ees may come into dramatic opposition should an employer decide to rely more heavily on part-time employees for reasons of economy and/or administrative efficiency. Finally, it is important to stress that none of the above deprives part-time employees of collective bargaining. Our approach responds only to the appropriateness of any bargaining unit where a party asks the Board to require their inclusion with regular full-time employees.

13. In the facts at hand the respondent points to the common terms of employment as evidence of a community justifying one bargaining unit. As noted above, these factors do not go to the different appetites for collective bargaining exhibited by these two distinct groups of employees regardless of industry. Moreover, such factors are often the product of unilateral employer action and, thus, unreliable indicators of employee interests. There is no indication that the res­pondent provided similar conditions of employment in response to employee demands or mar­ketplace pressures. The interchange between full-time and part-time employment in evidence before us is also not unusual and is a phenomenon that can be accommodated by the collective bargaining process. This is not a case where there is no identifiable group of employees hired to work part-time as in Paris Poultry Products Limited, [1978] OLRB Rep. May 453; Canadian Pacific Railway Company, Royal York Hotel Case, [1960] OLRB Rep. May 1960; and in the construction industry. On the related issue of casual or temporary employees, our practice has been against making distinctions between permanent and temporary employees. See Sydenham District Hospital, [1967] OLRB Rep. May 135 am page 137. In a volatile economy, such distinc­tions can become quite illusory. We have found that many work forces can be characterized at the margin as more or less temporary. See Laing & Sons Limited, [1961] OLRB Rep. Dec. 279; Peter Austin Manufacturing Co., [1967] OLRB Rep. May 144; Universal Cooler, [1967] OLRB Rep. Sept. 546. However, employees employed on a truly "seasonal" basis may well merit a separate unit depending on when the application is brought. See Melnor Manufacturing Ltd., [1969] OLRB Rep. Mar. 1288. But in the facts at hand this rule or approach has no application. Accordingly, casual or temporary employees employed in full-time capacity on the date of appli­cation are to be included in the bargaining unit and part-time employees, whether permanent or casual, are to be excluded.

14. However, all of the foregoing should not prevent the Board from reviewing whether the twenty-four hour standard ought to be revised downward to at least twenty (20) hours in light of the changes in employment patterns that have occurred over the years. The current twenty-four hour standard is a longstanding policy whose origin probably dates back to the War Labour Board years (see Snyders Ltd., (1946), 46 CLLC 16,457; Davis Leather Co. Ltd., (1947), 47 CLLC 16,491; and TA. Collins Transport Ltd., [1966] OLRB Rep. Oct. 504). Unfortunately, such a review is not practical in the context of a particular case because of the related amend­ments to the Board's forms that would be necessary (see Form 3-0. Reg. 32/73, s.8; Form 4 -R.R.O. 1970, Reg. 551, as amended by 0. Reg. 474/71; Form 17 - OReg. 321/73, s. 10; and Form 51 - R.R.0. 1970, Reg. 551, as amended by 0. Reg. 474/71). There would also be the problem of the operative date of any change.

Whatever it might entail, the kind of review contemplated by the panel in the last paragraph of this passage has not taken place.

20. In The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900, ("the Toronto Board case"), a differently constituted panel of the Board considered whether a unit of instructors employed to teach ESL courses in its adult and continuing education programme was an appropriate unit of employees of the respondent Board of Education for the City of Toronto ("the Toronto Board"). In its decision, the Board quoted extensively from a number of Board decisions, including the one in Board Governors of Ryerson Polytechnical Institute, supra. It reiterated the Board's aversion to "job classification" or "departmental" units at paragraph 24:

21. Finally, for the purpose of completeness, we should reiterate the Board's traditional and continued reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmented bargaining which that cre­ates (see, for examples: Cryovac Division, W. R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopoedic Hospital Inc., [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Rosco Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry, where departmental unioniza­tion has existed in the extreme, the Board indicated in 1981 that it might reverse the entrenched organizing patterns of the past, in favour of broader-based bargaining (see Hamilton Spectator, [1981] OLRB Rep. Aug. 1177). Most recently, in T. Eaton Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [19841 OLRB Rep. Sept. 1255, the Board repeated once again that it would not be conducive to orderly and stable collective bargaining to divide up an employer's business into bargaining units based on departments....

The Board had this to say about the community of interest of ESL instructors employed by the Toronto Board:

25. There is no doubt that ESL instructors teach courses that are somewhat different from those taught by other instructors (although not so obviously different from other language instruc­tors). But that is not a sufficient basis for concluding that they should be regarded as a separate unit for collective bargaining purposes. They are not certified teachers and do not require any specialized accreditation in order to teach their courses; nor is it apparent that they have any distinct or unusual teaching skills which are manifestly different from those of other continuing education instructors. The nature of their work - teaching - is very much the same, and they share the same working conditions and terms and conditions of employment. All continuing education instructors in non-credit courses receive the same salary and benefits and work in a variety of locations during the day, evening, or on weekends.

26. There is no significant difference in the structure of supervision. In a school setting, a princi­pal or vice-principal has overall responsibility and in a non-school setting it is a lead teacher who, interestingly enough, need not have any particular training in ESL. ESL is an integrated and important part of the respondent's overall continuing education programme which is linked to the curriculum planning resources of the language study centre in the same way as other course are, and in the same way as other courses may draw upon the resources of the mathemat­ics, modern languages, or other departments. ESL is not a separate department or administra­tive subdivision within the respondent's organization, and even if it was, that would not in itself justify a separate unit for collective bargaining purposes any more than a departmental bargain­ing unit would be appropriate in a factory, hospital or municipal corporation. If ESL teachers form an appropriate bargaining unit, so would the teachers of heritage languages, French as a second language, accounting, or automechanics. In each case the instructors teach a distinct course with a definable and different subject matter requiring some specialized knowledge or training. If the union is right in its analysis, the spectre of a multiplicity (perhaps dozens) of new bargaining units is an entirely plausible one and would only exacerbate the present situation in which there are already a very large number of bargaining units.

With respect to the organizational concerns described in the Ryerson case, the Board was not per­suaded that a unit which encompassed at least all instructors in the Toronto Board's continuing education programme could not be organized successfully "or that to facilitate employee access to collective bargaining it is necessary to define the bargaining unit in terms of the subject matter vhich instructors teach." The Board concluded that a unit confined to instructors teaching non­credit ESL courses was not appropriate for collective bargaining.

IV

21. The decision in the Toronto Board case was released after we had heard the parties' argument in this matter. We asked the Registrar to forward copies of that decision to counsel and invite their written submissions with respect to its application in this case. Taking those latter sub­missions into account, the parties' submissions may be briefly stated.

22. CUPE argues that instructors in the extended day heritage Language programme have a distinct and separate community of interest from the other Heritage Language instructors, having regard to their different terms and conditions of employment and their commitment to a full-time job. It relies on the Board's practice of putting full-time and part-time workers in separate bargain­ing units, and argues that a failure to do so in this case would make Heritage Language instructors in impossibly large and diverse group to organize and thereby deny extended day Heritage Lan­guage instructors the opportunity of bargaining collectively. It says the numbers of extended day Heritage Language instructors are sufficient to make them a viable unit, and that the other unor­ganized full-time workers could in future be included in a "tag-end", full-time unit." It distin­guishes the result in the Toronto Board case on two grounds: that the terms and conditions of employment of the Heritage Language instructors in this case "differ dramatically" from those of the ESL instructors in the Toronto Board case and that in this case "there is clearly a separate department for Heritage Language." It notes that separation of full and part-time workers was not addressed in the Toronto Board case. If a unit of extended day or full-time Heritage Language instructors is not appropriate, CUPE submits that a unit of full-time instructors would be appro­priate, again justifying the exclusion of part-time instructors by reference to the Board's practice of placing full-time and part-time employees in separate bargaining units. It contends for the tradi­tional 24 hour per week line of demarcation or, if that seems inappropriate here, argues for an 18 hour per week line on the basis that 24 is 60 per cent of 40, the number of hours in the traditional full-time industrial work week, and 18 is the 60 per cent of 30, the number of hours in a full-time work week for Heritage Language instructors.

23. The respondent school board is content with a unit of Heritage Language instructors provided the unit contains all such instructors (in which event, it is apparent to all, this application would fail). It suggests that concerns about fragmentation should not be as strong in this case as in the Toronto Board case because it has considerably fewer existing collective bargaining relation­ships than the Toronto Board did in that case. The respondent strongly resists any separation of full and part-time workers. With respect to Heritage Language instructors, it relies on the fact that they all perform the same work for the same sort of student, are all hired by the Teacher Personnel department and all have matters of discipline ultimately handled by that department. The respon­dent says the unit here is analogous with a craft unit, and notes that the Board does not exclude part-time tradesmen from craft units, citing Premier Operating Corporation, [1983] OLRB Rep. Dec. 2066. It notes also that only one of the six collective agreements by which it is currently bound excludes part-time workers, and that there was no suggestion in the Toronto Board case that part-timers would be excluded from any unit of continuing education instructors. With respect to its ESL instructors and other unorganized workers, the respondent says a distinction based on hours of work over and under 24 per week makes no sense, when ESL instructors, for example, work no more than 25 hours per week.

V

24. "Teachers", as that term was defined from time to time in predecessors of the Teaching Profession Act, and, later, in Bill 100, have been expressly excluded from this Board's jurisdiction since at least 1950. (For a review of the relevant statutes and their history, see Board of Education for the City of York, supra, at paragraphs 7 to 22.) Collective bargaining between teacher organiza­tions and school boards was not regulated by any Ontario statute until 1975, when Bill 100 was enacted. Bill 100 itself determined both the scope of the bargaining units and the identity of the bargaining agent for such units. Two groups of persons employed by school boards to teach were excluded from coverage by Bill 100. One group consists of certified teachers employed as "occa­sional teachers" as that term is defined by paragraph 1(1)31 of the Education Act. The other, refer­red to here as "instructors", consists of those persons whom school boards are permitted to and do employ to teach even though they are not certified teachers. (On its face, the definition of "teach­er" in Bill 100 includes an uncertified person teaching under the authority of a letter of permission, but only if he or she is employed under a written contract in the form prescribed for permanent and probationary qualified teachers. The latter circumstance seems unlikely enough. When one adds the further qualification, implicit in section 5 of Bill 100, that this hypothetical individual must also somehow be a member of an affiliate of the Ontario Teachers' Federation, the actual inclusion of an uncertified teacher in a Bill 100 unit seems so improbable, if not impossible, that one can fairly say that all instructors are excluded from Bill 100.) Because they are excluded from Bill 100, collective bargaining for instructors and occasional teachers falls, by default, within this Board's jurisdiction under the Labour Relations Act. While this has been so for some time, it is not until relatively recently that the Board has had to deal with applications for certification involving either group.

25. The first occasion on which this Board had to consider the applicability of its general practices, procedures and doctrines to a certification application affecting occasional teachers was in The Board of Education for the City of Toronto, [1983] OLRB Rep. Mar. 466. One of the issues in that case was whether the Board would apply its "30-30" rule to determine which persons were "employed" in the occasional teacher bargaining unit at relevant times. It concluded it would. The Board rejected that conclusion and adopted a special test for occasional teachers in Board of Edu­cation for the City of York, [1985] OLRB Rep. May 767, which was the next decision to address that question. As will be apparent from that decision and from the passage quoted earlier from Board of Education for the Borough of Scarborough, supra, occasional teachers are not a group which would have been excluded from a unit of certified teachers if it had fallen to this Board to define such a unit in accordance with the principles it has developed over the years. This observa­tion is not made as part of a critique of Bill 100, but simply to highlight a fact peculiar to the "edu­cation industry", the ramifications of which have led the Board to adopt a different approach to matters involving occasional teachers. In the same vein, it is noteworthy that the Board's approach to appropriate composition of occasional teacher bargaining units has been so influenced by the peculiarities of Bill 100 as to have results which would not occur in another industry - such as the definition of units in terms of the language in which employees work, for example: see, Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090.

26. The June 1986 decision in the Toronto Board case is the first occasion on which the Board has dealt with any issue affecting the appropriate definition or composition of a unit of instructors. It did not consider the application of the Board's practice, in industries organized otherwise than on a craft basis, of defining separate units for full and part-time workers when asked to do so. It said nothing about the hours of work of the affected employees, except in para­graph 14 where it described the jobs in question as "essentially part-time work opportunities." The propriety of applying that practice in defining units of instructors in the education industry is a question of first impression in the case before us. The Board has no substantial experience with collective bargaining between school boards and instructors, nor are we aware that anyone has. rhis is no reason to ignore the Board's experience in other areas or the fundamental principles it was developed through and as a result of that experience, of course. Given the experience that Board has had with issues involving occasional teachers and, to a lesser extent, its experience with university collective bargaining, however, we would not be quick to suppose that rules-of-thumb aind presumptions of fact derived from the application of basic principles to experience acquired in other spheres will necessarily bear unmodified, or any, application here.

27. Setting aside for a moment the question whether any separation based on hours of work s warranted, we have concluded, as the panel in the Toronto Board case did, that a bargaining unit limited to instructors who teach a particular subject - Heritage Language, in this case - is not an appropriate bargaining unit. We adopt the reasons expressed in the passages quoted from the Toronto Board decision in paragraph 20 above. We are not satisfied that the factual distinctions between that case and this are significant with respect to this issue. Indulging briefly in the use of he word "teacher" in its ordinary meaning, it appears to us that as teachers, albeit teachers with­out the qualifications which would take them into the collective bargaining regime of Bill 100, Her­itage Language instructors share a sufficient community of interest with other such teachers that hey should all be "lumped together for the purposes of collective bargaining", regardless of subj­ect taught. In this case, we take that conclusion beyond those to whose classes the "continuing education" label has been applied, and include both Itinerant Non-Academic Music Instructors and Swim Instructors. While the interests of the Swim Instructors may seem likely to be different from those of instructors in more academic or intellectual subjects, it is hard to see that their inter­ests are as close or closer to those of any of the unorganized groups of non-instructors. Furthermore, we do not wish to offer any encouragement to debate about the relative seriousness or academic worthiness of the course content of the diverse classes being taught by employees of school boards and other educational institutions. On the other hand, we see no particular reason to include in a unit of instructors any or all of those unorganized employees who do not teach. The mere existence of Bill 100 is sufficient support for the proposition that it is no less reasonable in school board labour relations than in the university context to put those who teach and those who do not in separate units.

28. Turning to the union's request for exclusion from the bargaining unit of part-time employees in accordance with Board practice, we think it important to distinguish between the 24 hour "rule" and the principles and educated expectations on which it depends for its origin and continued justification. The principles are simply the community of interest principles described in the cases to which we have referred. The educated expectation is that "employees who work sub­stantially fewer hours than full-time employees do not generally share a community of interest with the latter group": The Board of Education for the City of Toronto, [1983] OLRB Rep. Mar. 466 at paragraph 20; Elizabeth Fry Society of Ottawa, [1985] OLRB Rep. July 1026 at paragraph 23. Sep­arating the two groups requires line drawing. As the Board noted in Board of Education for the Borough of Scarborough, supra, at paragraphs 12 and 14, the qualitative "substantially fewer" test translated into a quantitative "one-half" one which, forty years ago, came to 24 hours per week. The 24 hour line survived gradual reduction of the standard industrial work week to 40 hours, since it was still possible to say, in the cases in which the Board was called upon to re-examine the con­cept, that the difference between 24 hours per week and full-time employment was still sufficiently substantial that the important interest of the Board and the parties who appear before it in main­taining certainty and predictability outweighed any interest which might have been served by tink­ering with the number, whether out of mathematical faithfulness to the original ratio or for any other reason.

29. On the facts before us, we see no reason to abandon the Board's educated expectation that employees who work substantially fewer hours per week than full-time employees are unlikely to share a community of interest with the latter group. Even in this new field of organizing, the important interest of the Board and the parties who appear before it in maintaining certainty and predictability requires at least that the onus of justifying abandonment of that educated expecta­tion be on the party proposing it. The respondent has not discharged that onus. We have no diffi­culty imagining that the bargaining aspirations and interest in collective bargaining of someone employed to teach one 2-1/2 hour class per week will be different from those of someone employed to teach 30 hours per week. We do, however, have difficulty saying that someone working 24 hours per week is working "substantially fewer" hours than the 30 hour per week employee. This is not just because of the semantic incongruity of a statement that 80% is substantially less than 100% but, more importantly, because we find it terribly difficult to see why, on the facts before us, the 80% contract extended day Heritage Language instructor should be said to share a greater com­munity of interest with the 2-1/2 hour per week Saturday instructor than with the full-time extended day Heritage Language instructor. Because this is a new area of organizing in an industry in which it might reasonably be expected that the applicability of customary Board practices would be freshly examined, it does not seem to us inappropriate to determine a dividing line which seems to us appropriate on the facts of the case before us, without feeling shackled to the 24 hour line. In doing so, we make no suggestion that the 24 hour per week line should be reconsidered on a case by case basis in industries in which there is already an established history of its application. Equal­ly, we do not suggest or expect that our first look at this question in this new context will immedi­ately and irrevocably set the pattern for bargaining unit determinations in the organizing of instruc­tors employed by school boards.

30. Where, then, should the line be drawn if, as we have decided, it will not be drawn at 24 hours per week? Counsel for the applicant suggested 18 hours per week, because 18 is the same percentage of 30 as 24 is of 40. Counsel for the respondent suggested 15 hours, because 15 is one­half of 30, and then noted that even that number made little sense when applied to the other instructors whom, he appreciated, the Board might include in the appropriate unit. We are not attracted to a mathematical proportionality approach.

31. As indicated by the passage quoted from Board of Education for the Borough of Scarborough, supra, full- and part-time workers have been distinguished in other contexts by per­ceived differences in their attachment to the workplace and in the strength of their aspiration for long-term gains in benefits, like pension benefits, in a trade-off against short-term gains in wages and other forms of immediate compensation. Because of the difficulties and problems they have or expect they would have in apportioning long-term benefits among "part-time" workers, employers tend to resist providing pension and other such benefits for those of their workers whom they per­ceive to have the stereotypical part-timers' limited attachment to their workplace. Simply put, an employee who conforms to the part-time stereotype on which the Board's distinction is based is unlikely either to seek or receive the same or proportionally similar pension benefits as an employee with a perceived 'full-time' commitment to the workplace. From that perspective, it is significant here that such benefits are provided to itinerant Non-Academic Music instructors who work more than 14 hours per week and to extended day Heritage Language instructors employed n percentage contracts for as few as 12 hours per week. Instructors who work Saturdays or eve­nings only are the most likely to fit the stereotype of the "moonlighter" whose interests differ from he employee whose primary career orientation is toward this workplace. As a matter of logistics, hose who work in the evenings only or just on Saturday will not be working more than 8 hours per eek for this employer. Although the evidence does not tell us the precise hours of work of every potential bargaining unit employee (which information the respondent was quite reluctant, for tact­ical reasons, to disclose to the union), we have a sense that there are two clusters of normal work ours, one ranging from 2 to 8 (and heavily weighted toward 2-1/2 by the many Saturday Heritage language teachers) and another ranging from 12 to 30 (with a significant number at or above 24). without suggesting that these observations demonstrably compel our conclusion, they have never­theless led us to draw the line here at 10 hours per week.

32. In the result, we find that the appropriate bargaining unit consists of:

all instructors employed by the respondent, save and except supervisors and persons above that rank, persons regularly employed for not more than 10 hours per week and employees in any bargaining unit for which a trade union held bargaining rights as of October 2, 1985.

'Instructors" means persons employed to teach, regardless of subject or skill taught, the age of the pupil or the location at which the teaching takes place. This unit does not include any person who a "teacher" within the meaning of paragraph 1(1) 66 of the Education Act, as such persons fall either within a unit of occasional teachers or a unit of teachers governed by The School Board and Teachers Collective Negotiations Act.

23. The respondent is directed to prepare and deliver to the Board and the applicant trade union lists of the names of persons it employed in the aforesaid bargaining unit on October 2, 1985, distinguishing in the usual manner between those who were at work on that day and those who were not and, with respect to the latter, indicating the last day worked before and the first day worked after October 2, 1985, and the reason for the employee's absence between those dates. In addition, the respondent is directed to provide the Board with specimens of the signatures of all employees named on the aforesaid lists for whom specimen signatures have not previously been filed by it in this application. The deadline for compliance with these directions is three weeks after the date of release of this decision or one week prior to the next scheduled hearing date, whichever a earlier.

24. The Registrar is directed to relist this matter for hearing.