[1986] OLRB Rep. November 1539
1268-84-R Ontario Secondary School Teachers' Federation, Applicant, v. Lincoln County Board of Education, Respondent
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.
DECISION OF THE BOARD; November 10, 1986
This is an application for certification. It is one of a large number of similar applications in which the applicant, OSSTF, sought to represent various categories of "teacher" who were not ostensibly covered by the School Boards and Teachers Collective Negotiations Act, 1975 ('Bill 100'), and who, therefore, were covered by the Labour Relations Act. These apparently unrepresented teachers were of various kinds, including: "occasional teachers" who fill in, as needed, when the regular teacher is absent, summer school teachers, and night school teachers. In the case of the summer and night school instructors, there was the added complexity that the programmes in which they taught might include both credit and non-credit courses, or might be administered in conjunction with a broader "continuing education" programme that employed instructors with no formal certificate of teaching qualification.
These applications posed both practical and legal difficulties - not least because the initial spate of applications from OSSTF was quickly followed by applications from other teacher organizations, such as the Ontario Public School Teachers' Federation ("OPS"), which claimed the right to organize other school teachers who, for one reason or another, were beyond the scope of Bill 100. Were these teacher organizations "trade unions" within the meaning of the Labour Relations Act? Which "teachers" in the target group were, in fact, covered by the Labour Relations Act, and which ones were arguably covered by Bill 100? What was the appropriate bargaining unit? Should the bargaining units determined by this Board under the Labour Relations Act mirror the bargaining pattern established under Bill 100? How should one establish the composition of a bargaining unit which, in the case of occasional teachers, would necessarily be composed of persons who only work on a casual basis, and in the case of summer school teachers would involve a group of teachers employed for a limited period of time? What, if anything, should one make of the distinction between "credit" and "non-credit" courses, or between "certified" and "non-certified" teachers? Indeed, how should one even give notice to, or conduct a representation vote of, casual employees with no fixed work place or summer school teachers whose short-term employment may be completed long before the certification proceeding could be concluded? And, of course, despite this surge of applications and obvious employee interest in collective bargaining, there was little established jurisprudence to assist the Board in resolving these questions because this was a new, and in some ways unique, organizing field. In the absence of the agreement of the parties, these issues had to be resolved by litigation.
How was that litigation conducted? In our view, quite sensibly. Since many of the cases involved similar issues, the parties were content to proceed with a few of them and adjourn the rest sine die in the expectation that three or four cases would be sufficient to establish the guidelines for the disposition of the others. The Board endorsed the record with its "standard form" endorsement, which provided that the matter would be adjourned for a period of one year, and unless before that time the parties notified the Board of their wish to proceed, the application would be terminated. We say "standard form" endorsement because it is the one usually employed when an application is adjourned on the expectation that it will likely be settled, and one year is ordinarily long enough for the parties to compose their differences, or determine that a Board hearing is necessary. The standard endorsement facilitates the administrative closing of a file when the proceeding has, in fact, been settled, even if the parties do not notify the Board to that effect. That, of course, is not the case here, nor was any step actually taken to close the file or terminate the proceeding. Despite the passage of more than a year, the file rested in an administrative limbo while the other cases proceeded to their conclusion; and, unfortunately the one-year period was unduly optimistic.
Two of those cases are of particular interest: Board of Education for the City of York (No. 1), [1984] OLRB Rep. Sept. 1279 and Ottawa Board of Education, [1985] OLRB Rep. July 1139. In each of them the Board considered the ambit of Bill 100 and the Labour Relations Act, and, thus, its jurisdiction to deal with the application before it. In each case, the Board decided that the subject employees were covered by Bill 100, and the Board was without jurisdiction. On that basis the applications were dismissed. (Paradoxically, in Ottawa Board of Education, it was the applicant, OSSTF, which was arguing that the Board did not have jurisdiction to deal with the application that OSSTF itself had brought.) Both cases contain a discussion of the relevant legislation and both are currently the subject of applications for judicial review which have been argued but not yet decided. There is no indication when the Divisional Court decision might be released, or whether that will be the end of the controversy. Given the nature of the issues at stake, it is quite conceivable that one party or the other would seek the opinion of the Ontario Court of Appeal.
Counsel for the respondent Boards of Education in these matters, take the position that the applications for certification either have been or should be dismissed in accordance with the Board's original endorsement. In several cases counsel notes the (arguably) incongruous result of having the collective bargaining rights of summer school teachers in 1987, determined by the wishes of summer school teachers employed in 1984; and, he also notes the administrative difficulty in preparing employee lists, and determining the composition of the bargaining unit, based on employment records that are more than two years' old. Counsel for OSSTF argues that the union and its members should not be prejudiced because the parties adopted a sensible procedure from an administrative point of view, or because neither the parties, nor the Board really turned their minds, until recently, to those applications which had been put "on hold", while others were being actively pursued. He argues that the proceedings should continue to be adjourned sine die until the release of the Divisional Court decision in City of York and Ottawa Board of Education.
We are not persuaded that we should accede to either of those requests - at least at this stage.
There is something to be said for the arguments on both sides - although we might observe, parenthetically, that an employer's administrative convenience is not something which is usually assigned much weight, and the interests of current employees can be adequately accommodated by directing a representation vote if the union is entitled to one. We are more concerned that the parties appear to have agreed to an adjournment sine die, pending the determination of certain "test cases", yet having done so, neither of them is urging the Board to resolve the cases held in abeyance in accordance with the principles established in those which have been decided. The respondents point to the one-year period in the Board's endorsement. The union points to the uncertainty generated by the application for judicial review. However, if we were to accept the analysis of the Board in the Ottawa case, it is not clear to us why this would not lead to a dismissal for want of jurisdiction rather than the failure to meet the requirements of the Board's earlier endorsement; and we note, once again, the rather curious position taken by the union in the Ottawa case: filing an application for certification, then arguing that the Board has no jurisdiction to deal with it, because the employees are already represented. Having succeeded in having its own application dismissed - a result which the union presumably seeks to have affirmed in the Divisional Court -why should the Board keep these applications alive, but "on hold", against the day when the Divisional Court or some higher authority might conclude that the Board's legal analysis was wrong? Certainly, in other contexts, the Board would not grind to a halt when there was a legal challenge to its jurisdiction, nor (in the absence of the agreement of the parties) would it postpone or decline to deal with a matter simply because a Court might later disagree with the Board's legal analysis.
In our view, the most appropriate way to deal with these applications is to schedule them all for hearing, in order to entertain the parties' representations upon their disposition, either along the lines suggested in the parties' written submissions, or in such other manner as may appear appropriate. Accordingly, the Registrar is hereby directed to schedule the applications bearing Board File Nos.: 1222-84-R, 1267-84-R, 1268-84-R, 1366-84-R, and 1386-84-R for further hearing to consider all outstanding issues, in light of this decision.
This panel of the Board is not seized.