Ontario Catholic Occasional Teachers' Association v. Ottawa Catholic Separate School Board

[1986] OLRB Rep. July 1017

0762-86-R Ontario Catholic Occasional Teachers' Association, Applicant, v. Ottawa Catholic Separate School Board, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.

DECISION OF THE BOARD; July 25, 1986

1. This is an application for certification.

2. The applicant has requested that a pre-hearing representation vote be taken.

3. It appears to the Board on an examination of 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 the voting constituency hereinafter described were members of the applicant at the time the appli­cation was made.

4. The Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:

all occasional teachers employed by the respondent in the Cities of Ottawa and Vanier and the Village of Rockcliffe, save and except those employees teaching in schools pursuant to Part Xl of the Education Act and employees in bargaining units for which any trade union held bargaining rights as of June 17, 1986.

For the purpose of this voting constituency definition, the terms "occasional teacher" and "teach­er" have the meanings assigned to them by subsection 1(1) paragraphs 31 and 66 of the Education Act, R.S.O. 1980, c. 129 as amended, which provide:

31. "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;

32. "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; R.S.O. 1980, c. 129,s. 1(1), par. 66; 1982, c. 32,s. 1(2).

We note that the respondent would have the Board add the words "in its English language schools" immediately before the words "save and except" and define "occasional teacher" as "teachers qualified as teachers pursuant to the Education Act" when defining the appropriate bar­gaining unit. It appears to us that each of those additions to the voting constituency definition would be redundant. The definition of the bargaining unit, however, is a matter to be determined under subsection 9(4) of the Act after the vote is conducted. If the respondent still takes this posi­tion after the vote, that should be made clear in the submissions it files in response to the Form 71 Notice of Report of Returning Officer, so that the matter can be set down for hearing.

5. All employees of the respondent in the voting constituency on the 30th day of June, 1986, who have neither voluntarily terminated their employment nor been discharged for cause between the 30th day of June, 1986, and the date the vote is taken will be eligible to vote.

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

7. The applicant asks that the vote be conducted by mail citing the Board's decision in The Board of Education for the Borough of York, [1985] OLRB Rep. May 767. In our decision of July 25, 1986, in Halton Roman Catholic Separate School Board, [1986] OLRB Rep. July 962, we reviewed the matter of mailed ballot votes in certification applications affecting occasional teachers and set out our conclusions in the following paragraph of that decision:

8. In the York case, the Board refused to follow an earlier decision on the eligibility issue, say­ing:

…….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

In retrospect, it seems to us that the Board's broad pronouncement on the superiority of mailed ballots in certification applications affecting occasional teachers may have been premature. While we do not suggest abandoning the mailed ballot for all but the most extreme cases, it seems to us that the use of mailed notice and central polls should be seriously considered in each case. Without some experience of this method of voting in cases where the union has been given voters' names and addresses in advance in accordance with the York decision, there will be no way of assessing whether the more complex mailed ballot vote procedure is so clearly superior as to warrant continuing to incur its higher costs. Unless specifically addressed in the decision directing the vote, the method of voting in cases involving occasional teachers should be a mat­ter for the Registrar. The Board's policy that notice of the vote be given by mail to eligible vot­ers and that the names and addresses of those voters be given to the applicant are unaffected by this decision.

There have been no submissions in this matter which would affect the conclusion we came to in that decision. In this case, we see no reason to direct that the pre-hearing representation vote herein be conducted by mail.

8. The matter is referred to the Registrar.