Ontario Public School Teachers' Federation v. The Ottawa Board of Education
[1986] OLRB Rep. December 1748
2232-86-R Ontario Public School Teachers' Federation, Applicant, v. The Ottawa Board of Education, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
DECISION OF THE BOARD; December 10, 1986
1This is an application for certification.
2The applicant has requested that a pre-hearing representation vote be taken.
3It 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 percent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
4Having regard to the agreement of the parties, 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 its elementary panel in the City of Ottawa, save and except employees in bargaining units for which any trade union held bargaining rights as of November 4, 1986.
For the purpose of clarity, the term "occasional teacher" in this description of the voting constituency has the meaning assigned to it by clause 1(1)31 of the Education Act, R.S.O. 1980, c. 129, as amended, and an employee who does not have the qualifications of a "teacher" as defined by clause 1(1)66 of that Act does not fall within that description.
5All employees of the respondent in the voting constituency on the 24th day of November, 1986, who have neither voluntarily terminated their employment nor been discharged for cause between the 24th day of November, 1986, and the date the vote is taken will be eligible to vote.
6Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
7When the parties met with the Labour Relations Officer ("LRO") appointed in this matter pursuant to the usual order, the respondent asked that any pre-hearing representation vote herein be conducted by "Mail In Vote". The LRO suggested that the respondent reduce its submissions on this point to writing and forthwith file them with the Board. In its consequent letter to the Board dated December 2, 1986, the respondent says that at the aforesaid meeting the LRO
"indicated that it was no longer the policy of the Labour Board to entertain applications for Mail In Votes and that any request by the Ottawa Board would surely be rejected. If it is possible to have a Mail In Vote this would still be preferred."
It is not the policy of the Board that it will not entertain requests that a representation vote be conducted by mail. The LRO's invitation to file submissions was inconsistent with her having said there is such a policy. We assume that the respondent misunderstood what was said. What the LRO would have said is that it is no longer the Board's policy to conduct pre-hearing representation votes by mail-in ballot as a matter of course in applications involving occasional teachers. The reasons for that change were explained in the Board's decision in Halton Roman Catholic Separate School Board, [1986] OLRB Rep. July 962.
8In that decision, the Board concluded that the admittedly significant differences between occasional teacher employment and employment in other bargaining units with which this Board deals did not preclude the Board's conducting representation votes at polling stations as it ordinarily does, nor, indeed, did they favour use of a mail-in ballot over the usual procedure. As the Board noted with respect to other sorts of employees who are not at work on a daily basis: "an otherwise unnecessary trip to their work place is not thought to be too much effort to expect from employees who wish to have their wishes taken into account in representation matters." The Board went on:
As counsel notes, occasional teachers ordinarily have several potential work places. Presumably, a central location (or locations) can be identified such that the effort required to travel to it (or one of them) is not substantially different from the effort which might be involved in travelling to work on a teaching assignment. Apart from the fact that there are more of them as a percentage of the total, those occasional teachers not actually at work at such a central location are in no different position from that of employees in other contexts who are not at work on the day of a vote, with this exception: some of them may have occasional teaching assignments at locations other than the central location which might prevent them from attending a poll conducted during their working hours. This problem, too, occurs in other contexts - with truck drivers, for example, and other employees whose work duties take them away from the otherwise logical polling place during working hours. The answer in those circumstances has been to ensure that the polls are open at times outside those work hours, so that employees in that position may also attend and cast their ballots.
It seems to us that resort to something resembling the Board's ordinary vote procedure need not require that polls be conducted in every school, nor would that disenfranchise individuals who could be described as actively interested in employment as an occasional teacher, if polls are open both during and outside the ordinary hours of work of occasional teachers. It would, however, require of nearly all eligible voters that they make an effort roughly equivalent to the effort involved in attending at work, in order to cast a ballot.
The Board concluded:
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.
9In the face of the Board's decision in Halton Roman Catholic Separate School Board, supra, a party who asks that a pre-hearing representation vote be conducted by mail must offer some reason why, in the circumstances of its case, the Board or the Registrar should depart from the usual practice. The respondent's letter offers no reasons for its request. In connection with the question of the number of polling stations which would be required if its request were rejected, the respondent observed that:
a large number of occasional teachers working in Ottawa live outside the City and are required to travel long distances. This includes teachers from Quebec as well as the cities of Gloucester, Nepean, Orleans, Oxford Station, Kanata, Manotick, etc. Some teachers travel upwards of 40 kilometers to reach their supply teaching assignments. Furthermore, as this is casual employment, many teachers use public transportation or car pools. We believe it is unreasonable to require these teachers to travel significantly out of their way in order to reach a polling station. Therefore, the Ottawa Board felt that in establishing the number of polling stations, a minimum of nine would be required
The letter goes on to suggest nine schools as locations for polling stations. According to the LRO's report on her meeting with the parties, the applicant has said that three polling stations would be sufficient.
10The number, location and hours of operation of polling stations are normally matters which are referred to the Registrar for determination. The above-quoted passages from the Board's decision in Halton Roman Catholic Separate School Board, supra, suggest certain guidelines for the determination of these questions when the voting constituency consists of occasional teachers. These are:
The number and location of polling stations should be sufficient to ensure that the average voter who is actively interested in employment as an occasional teacher need not travel significantly farther to vote than he or she could reasonably be expected to travel to take up an occasional teaching assignment.
The hours of operation of polls should be set so that voters who may be engaged on occasional teaching assignments on the day of the vote at schools where polls are not located have a reasonable period of time outside teaching hours during which to travel to a poll and cast their ballots.
We see no reason to direct that the pre-hearing representation vote herein be conducted by mail, and no reason to address ourselves to the question of the number, location and hours of operation of polls. Those and all other matters relating to the taking of the representation vote are referred to the Registrar pursuant to Rule 68 of the Board's Rules of Procedure for determination by him in accordance with his usual practice and the guidelines referred to in the previous paragraph.