[1986] OLRB Rep. July 1028
0430-86-R Ontario Catholic Occasional Teachers' Association, Applicant, v. Windsor Roman Catholic Separate School Board, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. W. Murray and P. J. O'Keeffe.
APPEARANCES: Susan Ursel, Ray Fredette and Mary Mosher for the applicant; Paul Mullins for the respondent.
DECISION OF THE BOARD; July 23, 1986
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board finds that all occasional teachers employed by the respondent in the City of Windsor, save and except employees in bargaining units for which any trade union held bargaining rights as of May 12, 1986, constitute a unit of employees of the respondent appropriate for collective bargaining. The phrase "occasional teacher" has the meaning assigned to it by section 1(1) 31 of the Education Act R.S.O. 1980, c.129, as amended.
As of May 12, 1986, the respondent and the Ontario Public Service Employees Union ("OPSEU") were parties to a collective agreement with effect from January 1, 1984 to December 31, 1985, covering:
all employees of the Windsor Roman Catholic Separate School Board in Windsor, save and except co-ordinator - student services, curriculum materials consultant, persons above such ranks, persons employed for not more than twenty-four (24) hours per week, and persons covered by subsisting collective agreements,
a unit for which OPSEU had been certified on September 28, 1983, in Board File No. 0581-83-R. A clarity note which appears in the several decisions issued by the Board in that matter lists the following classifications as falling within that unit: audio-visual technician, attendance counsellor, library technician, psychologist, chief pyschologist, social worker and speech pathologist. The collective agreement establishes salary levels only for employees in those classifications. It appears from the Board decision in Board File 0581-83-R that when the parties turned their minds to the question whether there were any unrepresented employees other than those employed in those classifications, the only unrepresented category then identified to the Board was "teaching assistant". The expectation reflected in the Board's decisions is that teaching assistants would be excluded from the "tag-end" unit for which OPSEU was being certified in that matter because those teaching assistants were regularly employed for not more than twenty-four hours per week. It appears the parties to those proceedings overlooked occasional teachers. The Board obviously did not have them in mind when it defined the unit for which it certified OPSEU. OPSEU and the respondent did not address occasional teachers in their collective agreement. The respondent does not claim that OPSEU has bargaining rights for any occasional teachers. OPSEU was given notice of this application and has not intervened to claim bargaining rights for occasional teachers employed by the respondent.
- As of May 12, 1986, Service Employees Union, Local 210 affiliated with Service Employees International Union ("Local 210") held bargaining rights with respect to:
all employees of the Windsor Roman Catholic Separate School Board in Windsor save and except supervisors, persons above the rank of supervisor and employees and bargaining units for which any trade union held bargaining rights as of June 5, 1985,
a unit for which they were certified June 28, 1985, in Board File No. 0572-85-R. A review of that file discloses that teaching assistants were the only employees whom the parties to the application then considered to be affected by it. It appears they overlooked occasional teachers. The Board would not have had them in mind when it adopted the parties' agreement to this "tag-end" bargaining unit description. Local 210 was given notice of this application. It did not intervene to claim bargaining rights for occasional teachers employed by the respondent. The respondent does not suggest that Local 210 has bargaining rights for any occasional teachers.
- The labour relations of permanent and probationary teachers (as those terms are defined by the Education Act) who are "employed by a board... as a teacher" are generally governed by the School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c.464 (often referred to as "Bill 100"). As the Board noted in Board of Education for the City of York, [1985] OLRB Rep. May 767 (at paragraph 5):
.Bill 100 does not apply to all teachers. Occasionals have been excluded, and, by default fall under the Labour Relations Act. It is not clear why they were omitted. There is no indication that the Legislature ever turned its mind to their situation.
- It may well be (as the Matthews Commission suggests) that the Labour Relations Act is not suitable for the public education sector. But for occasionals, it is their only alternative. Although they are qualified teachers they are not included in the bargaining system which covers their professional peers. By default, they fall within the ambit of the Labour Relations Act. This creates something of an anomaly. It would be much simpler if one could say that all qualified teachers employed to teach are covered by the general legislation governing teacher collective bargaining. But that is not the case...
It has been the Board's experience that until relatively recently school boards and unions that represent their non-teacher employees have not thought of occasional teachers as employees who might be the subject of or affected by collective bargaining under the Labour Relations Act. When they have been the subject of trade union organizing, they have been organized separately from other employee groups. Because of their affinity with "Bill 100" teachers, the Board has placed them in separate bargaining units -- if effect, "tag ends" to Bill 100 units. It seems clear to us that neither the Board nor the parties intended to deal with occasional teachers in the certification applications referred to in paragraphs 4 and 5 above. There is no indication that either OPSEU or Local 210 exercised or thought it had bargaining rights with respect to occasional teachers. Having regard to the foregoing and the fact that neither OPSEU nor Local 210 has sought to intervene in this application, we find that occasional teachers employed by the respondent do not fall within any bargaining unit for which any trade union had bargaining rights when this application was made.
The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on May 23,1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of that Act in this application.
Accordingly, a certificate shall issue to the applicant with respect to the bargaining unit described in paragraph 3 hereof.