Ontario Public School Teachers' Federation v. The Board of Education for the City of Windsor, 1986 CanLII 1563

[1986] OLRB Rep. March j378

2561-84-R Ontario Public School Teachers' Federation, Applicant, v. The Board of Education for the City of Windsor, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. M. Stamp and J. Kennedy.

APPEARANCES: Naomi Duguid, Ethan Poskanzer, Mary Hill and Ross Andrew for the applicant; Leonard P. Kavanaugh Q. C., V. Bill Piliotis and D. C Hyland for the respondent.

DECISION OF THE BOARD; March 5, 1986

Background

1. The name of the respondent is amended to read:

"The Board of Education for the City of Windsor".

2. This is an application for certification in which the applicant ("OPS") seeks to represent certain "occasional" or "supply" teachers working in the respondent's elementary school system. OPS is a teacher organization which already represents a large number of the respondent's elementary school teachers. The ultimate issue in this case is whether OPS will be entitled to represent supply teachers too.

3. This proceeding is but one of many certification applications arising out of recent efforts by occasional teachers across Ontario to form or join a trade union.

4. It appears that there are approximately 80 occasional teachers potentially affected by the present application. On the basis of the documentary evidence of membership filed with the Board, it is evident that the vast majority of those employees want to be represented by OPS. For its part, OPS wants to represent them. The question is whether OPS is permitted to do so. The employer's position is that OPS is not legally entitled to represent occasional teachers.

5. The respondent objects to the application on two broad grounds: that OPS is not a "trade union" entitled, under the Labour Relations Act, to represent this group of employ­ees, and, further, that even if OPS is a trade union, the terms of its constitution and section 13 of the Labour Relations Act preclude its certification. That position is summarized in a letter from the respondent's counsel dated January 28, 1985. The material portions of that letter are reproduced below:

In the Reply which we tiled on behalf of the Respondent, the Respondent pleaded that the Applicant is not a trade union as defined in Section l(l)(p) of the Labour Relations Act due to the fact that its membership includes persons who are not employees pursuant to Section 1(3) of the Act.

At the commencement of the hearing on January 25, 1985, I advised the Board that the Respondent was raising additional objections to the certification of the Applicant and these additional objections were outlined to the Board. At the conclusion of the sitting on that date, the Chairman requested that I file a letter with the Board deliniating [sici the additional objections of the Respondent.

In addition to the pleading contained in paragraph 10 of the Reply of the Respondent, previously filed, the Respondent pleads:

1. The Applicant is an organization of persons who are excluded from the application of the Labour Relations Act pursuant to Section 2(t) thereof, and, accordingly, the Applicant is not an organization of employees and therefore not a trade union as defined in Section l(l)(p) of the Act

2. The Applicant, even if it is found to be a trade union as defined in Section l(1)(p) of the Labour Relations Act, cannot be certified as the bargaining agent with respect to the proposed bargaining unit because:

(a) Women teachers, (even if that phrase can be interpreted as excluding women occasional teachers), who teach in elementary public schools, cannot be members of the Applicant and the Applicant therefore discriminates against persons because of sex contrary to Section 13 of the Labour Relations Act.

(b) In the alternative to the preceding paragraph, if women teachers, (even if that phrase can be interpreted as excluding women occasional teachers) can be members of the Applicant, the Applicant makes a distinction between its male and female members and the Applicant therefore discriminates against persons because of sex contrary to Section 13 of the Labour Relations Act.

(c) The Applicant is seeking certification with respect to persons (occasional teachers who teach in elementary public schools) who cannot be members of the Applicant.

(d) In the alternative to the preceding paragraph, the Applicant is seeking certification with respect to persons (women occasional teachers who teach in elementary public schools) who cannot be members of the Applicant.

Such further and other grounds as the Respondent may advise and the Board permit, arising out of, but not limited to, further evidence called and exhibits filed, including, but not limited to, evidence called and exhibits filed regarding the Constitution, by-laws and affairs of the Applicant.

The provisions of the Labour Relations Act referred to by counsel are as follows:

l.-(l) In this Act,

(p) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

1-(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

2. This Act does not apply,

(f) to a teacher as defined in the School Boards and Teachers Collective Negotiations Act, except as provided in that Act.

13. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

Other related statutory provisions are sections l(l)(l), 48, 64 and 106(2):

l.-(l) In this Act,

(I) "member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning.

48. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or

(b) if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

106.-(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

6. The issues which we will consider below can be summarized schematically as follows:

(1) Is OPS a "trade union"?

(i) Can an organization be a trade union if it admits to membership persons exercising managerial functions• within the meaning of section 1(3)(b) of the Act?

(ii) Do principals in fact exercise such functions [assuming a section l(3)(b) standard were applicable to them]?

(iii) Does it matter that virtually all of OPS' members are teachers

excluded from the Labour Relations Act by section 2(f) thereof?

(2) Can the Board certify OPS?

(i) Does OPS, as an organization, engage in sexual discrimination which, in turn, precludes its certification in accordance with section 13 of the Act?

(ii) Can OPS, under its constitution, admit occasionals to membership, and can such occasionals be counted as "members" for the purposes of the Labour Relations Act?

We might note that no employee has expressed any opposition to the applicant's certification. In particular, no employee has raised any concern that school principals or other allegedly "managerial" persons are members of OPS. No employee contends that OPS, in structure or practice discriminates on the basis of sex or otherwise. No employee asserts that the respondent has participated in the formation of OPS or has given it support. In short, no employee has expressed any concern or support for matters raised by the respondent as a bar to representation by OPS. Nor does the employer contend that it has interfered with the formation (etc.) of OPS, or that OPS is a dependent, employer-dominated organization.

7. The employer's position on these various issues will be examined in greater depth later. First, it may be useful to sketch in the context in which the present case arises, for as will shortly be seen, some of the issues raised by the respondent have already been litigated in other cases involving occasional teachers. (See Board of Education for the City of York ("York No. 1 "), [1984] OLRB Rep. Sept. 1279 and Board of Education for the City of York ("York No. 2"), [1985] OLRB Rep. May 767.) OPS relies on those decisions, pointing out that, in many respects, it is an organization with status and statutory responsibilities similar to OSSTF, which was the applicant in those earlier cases, and which the Board there found to be a "trade union". Accordingly, if we were to accept certain of the propositions urged upon us by the respondent, the result of this case might have ramifications well beyond whether some 80 occasional teachers can be represented by OPS if that is their wish.

8. We will begin with an overview of the legislation which assigns occasionals and classroom teachers to two, somewhat different collective bargaining regimes.

The Legislation Governing Collective Bargaining for "Occasionals" and Regular "Contract" Teachers, and the Special Features of Bill 100

9. It is common ground that the collective bargaining rights of occasional teachers are regulated by the Labour Relations Act. They are not "teachers" as defined by the School Boards and Teachers Collective Negotiations Act 1975, R.S.O. 1980, c.464 ("Bill 100"), and thus, they are not excluded by section 2(f) of the Labour Relations Act [see section 230 of the Education Act, R.S.O. 1980, c.129, and section l(1)(m) of Bill 100]. The result is that, for collective bargaining purposes, the occasionals fall under the Labour Relations Act, while the classroom teachers whom they replace are covered by Bill 100.

10. We do not think that it is necessary to review the various statutes governing the teaching profession or bearing upon a teacher's employment relationship. Such review was undertaken in York No. 1, supra, at pp. 1285-1296, and need not be repeated here. However it is useful to sketch in some of the background and special features of Bill 100. In York No. 1 the Board summarized these as follows:

School Boards and Teachers Collective Negotiations Act: "Bill 100".

20. The School Boards and Teachers Collective Negotiations Act was enacted in July of 1975. Before its enactment, no special or general legislation regulated collective bargaining between teachers and school boards in Ontario. Collective bargaining did, however, take place between them (see J. Douglas Muir, Collective Bargaining by Canadian Public School Teachers, Task Force on Labour Relations Study No. 21 (Ottawa: Information Canada, 1968); Bryan M. Downie, Collective Bargaining and Conflict Resolution in Education: The Evolution of Public Policy in Ontario (Industrial Relations Centre, Queens University, Kingston, Canada, 1978); and Peter Hennessy, Schools In Jeopardy: Collective Bargaining in Education, (MeClelland and Stewart, Toronto, 1979)). In October, 1970, the Ontario government established a committee of inquiry whose terms of reference were to inquire into, report upon and make recommendations with respect to the process of negotiation between teachers and school boards, including, inter alia, the definition of bargaining units. The committee formally known as The Committee of Inquiry Into Negotiation Procedures Concerning Elementary and Secondary Schools of Ontario was chaired by Judge Reville and will be referred to here as the Reville Committee. It prepared a report dated June, 1972 entitled "Professional Consultation and the Determination of Compensation for Ontario Teachers" in which it reviewed the matters referred to for inquiry and set out its recommendations. The committee's recommendation with respect to bargaining unit scope was that the bargaining agent should represent all employees of a board who hold a teaching certificate, except supervisory officers of the school board. The Ontario Teachers' Federation, which took the position that it should be the statutory bargaining agent for teachers, responded to that recommendation this way:

The Federation feels that the Committee's recommendation is not precise enough. For example, the Federation does not feel a responsibility to negotiate the salary of an employee of a board who holds a teaching certificate which is not a prerequisite under the Schools Acts and Regulation for employment - for example, a clerical worker with teacher qualifications who works in a school board's office.

The Federation recommends that the members of a teacher negotiating entity shall include those persons coming under the definition of "teacher" in the Teaching Profession Act ... (Submission to the Minister of Education in Response to the Report of the Committee of Inquiry into Negotiations Procedures, Ontario Teachers' Federation, June, 1972, p. 6.)

Very few of the Reville Committee's recommendations were implemented in Bill 100. The definition of "teacher" ultimately adopted in Bill 100 incorporates all of the elements of the definition of that term in the Teaching Profession Act and adds for good measure the stipulation that the employee be employed "as a teacher". Whether that approach achieved precision might now be a matter of debate.

21. The scheme adopted in Bill 100 was that each teacher employed by a board would be represented by an organization called a "branch affiliate" consisting of all the teachers employed by a board who are members of the same "affiliate". (s. 1(a)). Each of the five affiliates of the Federation is an "affiliate". Paragraph 1(m) defines teacher this way:

(m) "teacher" means a person,

(i) who holds a valid certificate of qualification as a teacher in an elementary or secondary school in Ontario,

(ii) who holds a letter of standing granted by the Minister under the Education Act,

(iii) in respect of whom the Minister has granted a letter of permission under the Education Act,

and who is employed by a board under a contract of employment as a teacher in the form of contract prescribed by the regulations under the Education Act, but does not include a supervisory officer as defined in the Education Act, an instructor in a teacher-training institution or a person employed to teach in a school for a period not exceeding one month;

The Act applies to all "teachers

3.-(l) This Act applies to all collective negotiations between boards and teachers in respect of any term or condition of employment put forward by either party for the purpose of making or renewing an agreement.

5. A branch affiliate shall, in negotiations and procedures under this Act, represent all the teachers composing its membership.

It also applies to principals and vice-principals, who are members of the bargaining unit, although they are not permitted to strike:

64.-(1) A principal and a vice-principal shall be members of a branch affiliate.

(2) Notwithstanding subsection (1), in the event of a strike by the members of a branch affiliate each principal and vice-principal who is a member of the branch affiliate shall remain on duty during the strike or any related lock-out or state of lock­out or closing of a school or schools.

The Act contemplates the continued significance of the individual contract of employment between the board and a teacher:

54.-(l) An agreement between a board and a branch affiliate shall be deemed to form part of the contract of employment between the board and each teacher who is a member of the branch affiliate.

(2) Where a conflict appears between a provision of any other part of a contract of employment and a provision of the agreement referred to in subsection (1), the provision of the agreement prevails, but no agreement shall conflict with the form of contract prescribed by the regulations under the Education Act.

22. The approach to collective bargaining adopted in Bill 100 differs in a number of respects from the approach of the Labour Relations Act. There is no provision for certification of bargaining agents or determination of the appropriate bargaining unit; both the bargaining agent and the scope of the bargaining unit are fixed by Bill 100. The parties are not free to determine the commencement and expiry dates of their collective agreement; under Bill 100, collective agreements must become effective on the 1st day of September and expire only on the 31st day of August in a subsequent year. To be effective, notice to bargain must be given in the month of January in the year in which the agreement expires, considerably earlier than would be the case under the Labour Relations Act. Bill 100 provides for fact finding, rather than conciliation, as the third party intervention prerequisite to the resort to the sanctions of strike and lockout. In addition to fact finding, section 63 of Bill 100 prescribes a number of other prerequisites to strike or lock-out activity beyond those found in the Labour Relations Act, including a vote on the Board's final offer and a strike vote, with both votes conducted under the supervision of the Education Relations Commission, as well as at least five days' written notice to the board of the date on which the strike will commence. Like the Labour Relations Act, Bill 100 imposes on each of the parties to collective bargaining the obligation to bargain in good faith and make every reasonable effort to make or renew an agreement. Jurisdiction to assess and enforce compliance with this obligation is assigned to the Education Relations Commission, which is also assigned a number of other duties which have no equivalent in the jurisdiction assigned to the Ontario Labour Relations Board under the Labour Relations Act. Bill 100 assigns to the Ontario Labour Relations Board jurisdiction over applications for a consent to prosecute alleged contraventions of the Act (subsection 77(6)), and applications for declarations and directions with respect to allegedly unlawful strikes and lockouts (section 67).

23. In passing Bill 100, the Legislature was, to some extent, merely giving formal statutory recognition to institutions and bargaining processes which were already well established. Teachers were not covered by the Labour Relations Act but they were already bargaining collectively through their own organizations, and, on occasion, even engaged in work stoppages. As Osler J. observed in Board of Education for the City of Windsor v. Ontario Secondary School Teachers' Federation et al., 1974 CanLII 569 (ON HCJ), 7 O.R. (2d) 26:

In practice, elaborate agreements resembling collective agreements as contemplated by the Labour Relations Act are made for various periods of time between Boards and the Ontario Teachers' Federation or a component part thereof such as the respondent Federation.

Remuneration agreed to by these documents automatically replaces the initial salary provided for in the teacher's individual contract and hence the identity of such contract as an individual contract between employer and employee has tended to become blurred.

That case, decided before Bill 100, involved a concerted refusal to work - something which would be a "strike" under the Labour Relations Act. Osler J. refused to enjoin the activity observing, in passing, that "there is neither a collective agreement nor a statute imposing a particular code of labour relations on these parties". That changed the following year.

12. Bill 100 provided a new statutory framework for an already well-established but voluntary collective bargaining system, and it had many interesting features - as the Board noted in York No. 1. One of them is that principals share most of the collective bargaining rights of their professional colleagues. They are not only members of the same bargaining unit and bargaining agent as other teachers but the legislation requires that this be so. But what is also interesting for this case (and not stressed in York No. 1) is the extent to which the Legislature gave its imprimatur to a system in which the teacher collective bargaining organizations continue to be defined and divided on the basis of religion, language, or gender. The affiliates (inter alia statutory collective bargaining agencies) defined by Bill 100 are: The Ontario Secondary School Teachers' Federation (OSSTF), The Ontario Public School Men Teachers' Federation (now OPS), The Ontario English Catholic Teachers' Association (OECTA), The Federation of Women Teachers' Association of Ontario (FWTAO), and L'Association des Enseignants Franco-Ontariens (AEFO). Under Bill 100 a male elementary school teacher is (and must) for collective bargaining purposes be represented by OPS. A female is (and must) be represented by FWTAO. A Francophone is represented by AEFO. A Catholic Anglophone is represented by OECTA.

13. No doubt, in passing Bill 100, the Legislature sought to formalize and preserve institutional arrangements with deep historical roots, that had been developed by the parties themselves and, presumably, reflected their own norms and needs. Bill 100 did not fundamentally alter the major players or the established bargaining process. It largely "institutionalized" the status quo, and superimposed a variety of new dispute settlement mechanisms. However, in so doing, the Legislature has given its blessing to institutional arrangements based on ethnicity, religion or gender. Indeed, it indirectly compels membership in such organizations. We shall return to this theme later.

14. Bill 100 was passed in the wake of one committee of inquiry. It was soon to be scrutinized by another. In 1979, pursuant to section 9 of the Education Act, the Minister of Education established "the Matthews Commission" to review the collective bargaining process between teachers and school boards. Its recommendations were unanimous on those issues potentially relevant to this case. They are summarized at paragraph 4 of York No. 2:

15. The Report comprises some 137 pages, and from our perspective, there are only two aspects of particular interest. The first is that the Commission explicitly considered the position of occasional, night school, and summer school teachers and recommended that Bill 100 be amended to provide for their inclusion in bargaining units represented by the various teachers' federations Isee the discussion at pp.47-48 of the Report]. The Commission also considered whether principals and vice-principals should be full members of the teachers' federations and the bargaining units they represent - an issue that was contentious when Bill 100 was drafted and remained highly controversial. The outlines of what was obviously a spirited debate appear at pages 4047 of the Commission Report. Ultimately, the Commission concluded that principals and vice-principals should remain in the bargaining unit:

The Commission believes that it is possible that the position of principal would be judged under The Labour Relations Act to be a "management" position and therefore would be excluded from the bargaining unit. However, Bill 100 was enacted in 1975 specifically because it was thought that The Labour Relations Act was not suitable for the public education sector.

There have been no amendments to Bill 100 dealing with the position of occasional teachers, or principals and vice-principals. To date, the Legislature has chosen to maintain the status quo. Occasionals are covered by the Labour Relations Act. The regular classroom teachers whom they replace are covered by Bill 100.

15. This legal bifurcation creates some obvious anomalies and problems. It fragments the bargaining structure available to certified teachers working in Ontario Schools. Even if OPS is entitled to represent occasionals they would be in a separate bargaining unit; and, of course, if the respondent is right, the Legislature has erected a scheme which prevents occasionals from being represented by the established organizations which already represent teachers in collective bargaining, and to which many occasionals have turned for assistance. It is ironic (but conceded by the respondent) that if the occasionals sought to be represented by the Teamsters, or any other "general union", there would be no impediment whatsoever. The problem arises in this case only because the occasional teachers want to be represented by OPS. In addition, should the occasionals seek to organize, they will necessarily be confined to a bargaining unit composed solely of casual employees - something which the Board would not usually consider conducive to an orderly collective bargaining relationship. Finally, how does one define the degree of attachment necessary to indicate an "employment relationship" for individuals who are only engaged on a casual basis? For collective bargaining purposes, who should be treated as an employee in the bargaining unit?

16. It is not clear why occasionals were omitted from Bill 100. There is no indication that the Legislature has ever turned its mind to their situation. Perhaps it is simply that occasionals were not part of the pre-1975 bargaining process and had not indicated any appetite for collective bargaining. But that has certainly changed. The Board has dealt with or currently has before it, certification applications involving literally hundreds of occasional teachers seeking representation by the statutory collective bargaining agents which represent their teacher counterparts covered by Bill 100. One of those cases involves the respondent's secondary school supply teachers and an application by OSSTF - see Board File 3042-84-R. The question in this case is whether elementary school teachers employed by the respondent can be represented by OPS.

17. With this background then, we turn to the evidence. We will then review the various propositions advanced by the respondent.

The Evidence - The Relationships of Principals, Occasionals and Contract Teachers

I

18. "'he facts were not substantially in dispute. Mr. D. Hyland, a "supervisory officer", explained his role, and the relationship of school principals to regular contract teachers and occasionals. Mrs. Kelk, a school principal and voluntary member of OPS, added her perspective. Ross Andrew, an official of OPS (who has also been a classroom teacher, vice-principal and principal), explained the objectives of OPS and some of the organizational changes which have been undertaken in recent years. As it turned out, the evidence was very similar to that before the Board in York No. 2, where, as here, the respondent Board of Education objected when an established teacher organization (OSSTF) sought certification as bargaining agent for a unit of occasional teachers. There, too, the Board of Education asserted that an "affiliate" or "branch affiliate" under Bill 100 was not a "trade union" entitled to invoke the certification procedures in the Labour Relations Act, because it included "managerial personnel" among its membership. There, as here, the Board heard evidence about these allegedly "managerial" responsibilities.

19. Mr. Hyland has been a superintendent for twelve and a half years. Before that, he held positions as a classroom teacher (19 years), vice-principal (3 years) and principal (4 years). There are three superintendents. Above them in the hierarchy is a superintendent of operations and a superintendent of programmes. They, in turn, report to the director of education who is the respondent's chief administrative officer. All of the administrative officials are ultimately responsible to the elected Trustees of the Board of Education. This ultimate authority of the elected Board is recognized in the collective agreement covering contract (i.e., regular class-room) teachers, which is negotiated between the respondent on the one hand and FWTAO and OPS on the other. Article IV, the "Management Rights" clause reads, in part, as follows:

4.01 The Branch Affiliates recognize that the Board has the right, duty and responsibility to provide, operate and manage its elementary schools in the City of Windsor, according to the laws of Ontario and subject to the express provisions of this agreement, so long as these provisions are not inconsistent with any law of Ontario.

4.03 The teachers further recognize the right and duty of the Board to appoint, demote, discharge and discipline teachers for just cause. A permanent teacher who has been demoted, discharged or otherwise disciplined may exercise the right to lodge a grievance in accordance with Article XVII of the collective agreement.

20. Mr. Hyland told the Board that the elementary school system encompasses approximately 40 schools, employing approximately 650 classroom teachers. All of the schools have a principal and (depending upon size) about 22 of them have a vice-principal as well. All of the principals and vice-principals are members of one or the other of the branch affiliates and are thus eligible to hold executive office in those teacher organizations. Mr. Hyland was uncertain about the details, but he was sure that, at various times over the years, principals and vice-principals had held executive positions in the affiliates. This aspect of his evidence was not contradicted by the applicant and we are prepared to find that from time to time principals have held such positions. Indeed, one would expect that the very qualities of mind and leadership which make for an effective principal, would lead to an executive role within the professional association if a principal chose to pursue that organizational interest.

21. Some principals teach. Some do not. It depends upon the size of the school, and the extent to which their time is consumed by administrative responsibilities. Those responsibilities are specified in section 236 of the Education Act, and sections 12 and 13 of Regulation 262 made under that Act:

Education Act

236. It is the duty of a principal of a school, in addition to his duties as a teacher,

(a) to maintain proper order and discipline in the school;

(b) to develop co-operation and co-ordination of effort among the members of the staff of the school;

(e) to prepare a timetable, to conduct the school according to such timetable and the school year calendar or calendars applicable thereto, to make the calendar or calendars and the timetable accessible to the pupils, teachers and supervisory officers and to assign classes and subjects to the teachers.

Regulation 262

12(3) In addition to the duties under the Act and those assigned by the board, the principal of a school shall,

(a) supervise the instruction in the school and advise and assist any teacher, in co-operation with the teacher in charge of the organizational unit or program in which the teacher teaches;

(b) assign duties to vice-principals and to teachers in charge of organizational units or programs;

(e) report to the board or to the supervisory officer in writing, on request, on the effectiveness of members of the teaching staff and give to a teacher referred to in any such report a copy of the portion of the report that refers to the teacher;

(f) recommend to the board,

(i) the appointment and promotion of teachers, and

(ii) the demotion or dismissal of a teacher whose work or attitude is unsatisfactory, but only after warning the teacher in writing, giving the teacher assistance and allowing the teacher a reasonable time to improve;

13(1) A board may appoint one or more vice-principals for a school.

(2) A vice-principal shall perform such duties as are assigned to the vice-principal by the principal.

(3) In the absence of the principal of a school, a vice-principal, where a vice-principal has been appointed for the school, shall be in charge of the school and shall perform the duties of the principal.

II

22. Occasional teachers fill in when regular classroom teachers are absent. Work opportunities arise only when the regular classroom teacher is unable to perform his/her regular duties. The actual allocation of work is quite routine and mechanical - probably because most elementary school teachers (unlike secondary school teachers) do not restrict their teaching to particular subject areas.

23. The respondent maintains a regular list of approximately 80 occasional teachers who have indicated their willingness and availability to work in its elementary schools. The list is no guarantee of any particular volume of work, but over the years a pool of 80 occasional teachers has been sufficient to both meet the respondent's needs, and generate a sufficient number of work opportunities to keep the occasionals active and interested. In addition, there is a subsidiary list of about 100 qualified individuals who could be added to the active list if some of its members became unavailable.

24. Mr. Hyland testified that it was his responsibility to interview candidates, maintain the permanent supply list, and, when vacancies arose, transfer interested applicants to the active list. He said that, for the most part, he had inherited the current list from a former supervisory officer but, when vacancies occur, he checks teacher resumes and conducts interviews to decide who should be added. A recommendation from a principal would be a strong factor in an applicant's favour. On relatively rare occasions, Mr. Hyland may decide to delete someone from the list because of adverse reports about his/her classroom performance. He could not recall any specific instance but suggested that this might have occurred perhaps four times in the last two years. Ordinarily, he said, any problems which had arisen were regarded merely as instances of personality conflict or poor communication and that he tried to step in to "heal" the situation. If a local principal was adamant, he would merely ensure that the particular supply teacher did not return to that school.

25. For the most part, the respondent's employees are not involved in the selection of which occasional will fill such work assignments as may arise. The respondent has "subcontracted" the allocation of these work opportunities to a local telephone answering service which has been provided with the telephone numbers of the persons on the active occasional list together with their particular specialties (art, music, library, etc.) and the school(s) where they prefer to work. An employee of the answering service simply goes down the list, telephoning prospective candidates, until he/she finds one who is willing to undertake the particular work assignment. The supply teacher continues to report for work until advised by the answering service (or perhaps the school) that his/her services are no longer required because the regular classroom teacher will be returning.

26. In this scheme, the principals have little influence in the selection of the pool from which occasionals working in their schools are drawn, and virtually no influence over which occasional teachers will be called upon to fulfill these short-term teaching assignments. Nor is there any evidence that the principals or vice-principals have any influence over the terms and conditions of employment for occasional teachers. They do not prescribe or recommend salary or benefit levels and, of course, such items as bonuses, performance allowances, merit pay, or annual increases are irrelevant for this group of casual employees. Indeed, we should note that the collective agreement covering the regular classroom teachers also purports to establish the formula on which elementary occasional teachers will be paid. Article 5.02 reads:

5.02 Where a teacher, qualified to teach in the elementary schools of Ontario according to the Ontario Statutes, is employed as an occasional teacher for a period of more than ten (10) consecutive days on the same assignment, the salary of the teacher shall be pro-rated on the salary grid according to his/her category/experience placement. For periods of employment up to and including the ten (10) days, the daily rate of salary paid shall be 1/220 of the minimum of Category 1(D) per day for teachers not holding a degree and 1/220 of Category 4(Al) for teachers holding a degree.

Whatever the merits of the respondent's position that the branch affiliates are not legally entitled to represent occasionals, it is interesting that the respondent was prepared to negotiate with those same branch affiliates about what must necessarily be a critical term of employment for the occasionals.

27. The position of occasionals hired for longer periods of time (for example, to replace someone on maternity leave or with a serious illness) may be a little different. In their case, the principal may have more input in the selection process. Apparently the practice is for the superintendent to pre-select four or five candidates who are then interviewed by the principal or vice-principal, and the superintendent himself if he has time. A recommendation is then sent up the administrative hierarchy, ultimately to the Board of Education which makes the final determination. Mrs. Kelk added that in one instance her recommendation was based substantially upon the assessment of the teacher to be replaced. She forwarded that recommendation to Mr. Hyland who accepted it.

28. Principals would have a role co-ordinating and directing the work of their own school clerical staff - subject to the respondent's overall personnel policies. It is not clear to what extent a principal can influence secretarial salaries or promotions, however, it is fair to assume that a favourable recommendation would carry considerable weight if there was some question whether a secretary should move from one job or salary level to another. Without more detail about how secretaries are paid we cannot say more except that it does not appear that the principal has much to say about the salary scale paid to the respondent's clerical staff. It appears that there has not been the occasion for disciplinary action or demotions, etc. but again, it is fair to assume that the principal would be consulted. However, Mr. Hyland indicated that on these matters the respondent's peronnel department would be directly involved since it is responsible for employer-employee relations matters.

III

29. Despite the responsibilities of principals spelled out in the Education Act and their undoubted duty (as Mr. Hyland put it, to "co-ordinate the human and physical resources of the school") the evidence establishes that the principal has no independent authority to hire, fire, or discipline contract teachers - although, as the person with the most immediate knowledge and responsibility for the workings of a particular school, the principal's opinions or recommendations will obviously be accorded some weight. However, given the legislative framework, professional context, and collegial mode of decision-making, it is not easy to assess the independent significance of the principal's role. As one might expect, the relationship between highly trained professionals is not the same as that of superiors and subordinates in an industrial plant. In this professional milieu, problem-solving, peer-review, counselling, and professional development replace the more overt exercise of authority found in the more traditional employer-employee relationships typically governed by the Labour Relations Act.

It is difficult to apply the same "rules" or "approaches", and one must remember that the Legislature has chosen not to do so. In argument, the respondent stressed the supposed anomaly of including "managers" and "managed" in the same unit and argued that a "union" could not properly include both groups in its ranks. However, even if we adopt the respondent's labels ("managers" and "managed"), it is obvious that the Legislature has assigned them both not only to the same collective bargaining organization, but also to the same collective bargaining unit - without (on the evidence before us at least) any calamitous collective bargaining results.

30. Clearly, principals and their delegates, vice-principals, perform important functions concerning the ongoing administration and running of the elementary schools. As the system's first level of administration, the principals (and vice-principals) have an important role to play in determining the organization and performance of the teaching complement - although, their role is part of a much broader process of consultation, professional assessment, and collegial decision-making. The principal is responsible for administering the school, identifying problems and ensuring that they are rectified. In the case of new hires, principals and/or vice-principals typically interview those candidates forwarded to them by other officials of the respondent and make recommendations which are passed on to the superintendent(s), the superintendent of operations, and ultimately to the elected Board itself. However such activities are much less common in recent years. Declining enrolments mean a reduction in the total complement, fewer "new hires", and a shift in focus to how to preserve the jobs of the qualified teachers already on staff. There is less concern about the progression of a teacher from probationary to permanent status which could be dependent upon a favourable evaluation by the principal and a superintendent which is forwarded to the Board. Mr. Hyland testified that, in any event, the progression from probationary to permanent status is virtually automatic, because a teacher would not have been hired in the first place unless she/he was qualified. In the case of a promotion from regular classroom teacher to vice-principal, principals will typically participate on the interview team whose "consensus" recommendation will be forwarded to the superintendent of operations and then to the Board for ratification. Mr. Hyland testified that a short list would be forwarded to the Board together with an assessment by the superintendent of operations, based on a "point system", taking into account such factors as preparation, education, leadership qualities and so on.

31. If the failure of a probationer to make full contract status is rare, it appears that a discharge for cause is even rarer. The discharge of a teacher is a serious matter, and there was no specific evidence before the Board to indicate that a disciplinary discharge had ever occurred or the circumstances in which a disciplinary discharge would inevitably occur. Moreover, this would clearly be a decision of the Board of Education which would be based not only upon the opinion of the local principal and the recommendations of supervisory officers, but also upon the advice of such other professional employees as the Board might wish to consider. Mr. Hyland indicated that the local principal would not be present at any Board meeting debating such issue, although the supervisory officers would be, and the Board would have a written opinion from the local principal about the problem, if not the propriety of a discharge. There was no evidence of the kind of direct disciplinary discharge which regularly comes before arbitrators in both the private and public sectors. In fact, there is no direct evidence of anything which could be considered disciplinary in a standard industrial relations sense.

32. The terms of the parties' collective agreement underline the ambivalent position of principals in the statutory collective bargaining scheme. In accordance with Regulation 12(3)(f), the principal may recommend the demotion or dismissal of a teacher whose work or attitude is unsatisfactory, and in accordance with Article 5.03 of the collective agreement, supra, a Board may, on a principal's recommendation, withhold a teacher's annual salary increment. There is no evidence that this has ever happened. There is no evidence that anyone has ever grieved about a principal's decision, opinion or assessment. Principals do not handle or respond to grievances on behalf of the respondent; however, as members of the bargaining unit they can file grievances asserting a breach of the collective agreement.

33. In summary then, there is virtually no concrete evidence of employer-employee or collective bargaining friction flowing from the principal's role despite ten years under Bill 100 and a long history of hiring occasionals.

IV

34. Ross Andrew's evidence focussed on the historical background of OPS. It was incorporated by letters patent in 1921 and currently has the following objects:

Article III - Objects

The objects of the Federation shall be:

1 To promote and advance the cause of education. 2 To promote a high standard of professional ethics. 3 To raise the status of the teaching profession. 4 To arouse and increase public interest in educational affairs. 5 To promote, safeguard and advance the interests of teachers.

6 To secure the best possible terms and conditions of employment for teachers, in order to ensure quality education.

7 To cooperate with other organizations throughout the world having the same or like objects. (1981)

8 To gain greater control of teacher education and certification.

9 To promote as a long-term goal the unification of all teachers in the Province of Ontario into a single unified body without affiliates. (1983)

10 To promote the provision of universally accessible daycare. (1983)

11 To organize and represent occasional teachers teaching in public elementary schools in Ontario. (1984)

35. Whether or not OPS is a "trade union" under the Labour Relations Act, it is undoubtedly an organization of professional employees who have joined together, inter alia, for the advancement of their professional and employment interests. OPS grew in tandem with the other teacher organizations which after 1975 acquired the status of statutory bargaining agents under Bill 100. At the present time, OPS has a total membership of between 16,000 and 16,500 teachers. Of these, about 14,000 are male teachers, teaching in public elementary schools, and represented by OPS for collective bargaining purposes by virtue of Bill 100. In addition, OPS numbers among its membership about 1,500 women (ordinarily represented for collective purposes by FWTAO), and about 200 occasional teachers of both sexes.

36. According to Ross Andrew, OPS has voluntarily admitted women into membership since 1972 - that is, well before Bill 100 was enacted and gave formal legislative recognition to collective bargaining divisions based upon sexual differences. As early as 1944, the Legislature created the Ontario Teachers' Federation (OTF) as an umbrella organization for the five affiliates later designated for collective bargaining purposes under Bill 100.

37. Mr. Andrew indicated that sex is no longer an impediment to membership in OPS. In fact, the only requirements are that one possess a teaching certificate, be employed in an educational capacity, tender the required fee, and find a "district" willing to accept the new applicant. OPS' long-term objective is to unite all elementary school teachers in a single organization. Apparently FWTAO does not share that goal or desire.

38. According to Mr. Andrew, all of the members of OPS have approximately the same duties, responsibilities and privileges; but there are obviously different obligations imposed by statute. Mr. Andrew explained that, as a practical matter, it would be foolish for one designated collective bargaining agency to duplicate the services imposed, by statute, upon another one. Thus, OPS admitted into membership women elementary school teachers (like Mrs. Kelk) who are represented for collective bargaining purposes by FWTAO, but would generally decline to provide those services already provided by their own statutory collective bargaining agent. For example, during a strike authorized by FWTAO, OPS would not provide strike pay to those of its members who were also, by statute, required to belong to FWTAO and would therefore expect to receive support from FWTAO in any collective bargaining dispute with their employer. However, OPS does provide counselling, assistance in professional difficulties, professional development, counselling and access to the QECO system whereby teachers' qualifications were evaluated for salary rating purposes; and would provide service in professional relations disputes if FWTAO did not do so. According to Mr. Andrew, there was no institutional discrimination between men and women or between occasional teachers and others. Voluntary members, such as occasional teachers, can hold office, participate in OPS programmes, and engage fully and without restraint, in the institutional life of the organization. At the time of hearing, OPS had a woman president.

Are Principals Really "Managerial"?

I

39. Although framed with reference to particular provisions of the Labour Relations Act (sections l(3)(b), 13, 48, 64, and 106(2)), the first branch of the respondent's argument is based upon the premise that "managers" and "managed" cannot be part of the same organization. If they are, the respondent argues, that organization cannot be a "trade union" under the Labour Relations Act. Because OPS numbers among its members persons (principals) said by the respondent to be "managerial" so that they would not be "employees" if the Labour Relations Act applied to them, the respondent asserts that OPS should not be considered to be an "organization of employees" entitled to seek bargaining rights for occasional teachers. But are principals "managerial" in the collective bargaining sense envisaged by section 1(3)(b)?

40. Of course, the whole question is somewhat artificial since the Act does not apply to principals or contract teachers at all; moreover, apart from that collective bargaining statute which does not apply, there is no doubt that OPS is an "organization of employees formed for purposes that include collective bargaining". Teachers and principals are employees at common law and under the applicable statutes governing their employment relationship. OPS is an organization of such employees. It has engaged in collective bargaining both before and after the passage of Bill 100. On a purely literal reading of the words of section l(l)(p), OPS meets the test (leaving aside for the moment the fact that most - but not all - of its members are employees to whom the Act does not apply).

41. On a visceral level, however, the respondent's argument has some attraction, for there is no doubt that collective bargaining is premised upon an arm's length relationship between employers and management. Under the Labour Relations Act, sections 1 (3)(b) and 106(2) give the Board authority, for collective bargaining purposes, to preserve that distinction. But acceptance of those propositions does not mean that we would find that principals are managerial if section 1(3)(b) were applied to them.

II

42. Section 1(3)(b) has been in the statute in its present form since 1957 when, following the decisions of the Supreme Court in Re OLRB, Bradley et al. and Canadian General Electric Co. Ltd., 1957 CanLII 114 (ON CA), [1957] OR. 316 (C.A.) reversing [19561 OR. 437 (O.H.C.)., the Legislature amended the section to clarify the Board's jurisdiction and authority. The "old" wording read:

(3) For the purposes of this Act no person shall be deemed to be an employee...

(b) who is a manager or superintendent or who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

It now reads:

(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

43. This change in statutory language did not change the basic problem to which section 1(3)(b) is addressed. But it did make it clear that it was the Board's opinion which was determinative, and that in construing or applying section l(3)(b) the Board should take into account collective bargaining considerations and its own experience. Indeed, if there were any residual doubt that this is the approach the Board should take in interpreting the Labour Relations Act, it has been dispelled by the recent decisions in Wells Fargo Armcar Inc., [1981] OLRB Rep. July 1046; judicial review dismissed (1982) 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361 (Ont. Div. Ct.). There, the Board held that persons who wore uniforms, carried sidearms, guarded their employer's property, and were called "guards", were not "guards" under the Labour Relations Act because they did not exercise functions vis-a-vis other employees so as to bring them within the mischief to which section 12 of the Act is directed. The Divisional Court agreed. The words in the statute must be interpreted in a collective bargaining context, to advance the goals in the Preamble, and make "labour relations sense" of the process.

44. What is the "mischief' to which section 1(3)(b) is directed? The purpose of section 1 (3)(b) is to ensure that persons who are within a bargaining unit do not find themselves with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members of the bargaining unit. Section 1(3)(b) is based on the notion that neither the trade union nor the employer and its management team need be concerned that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 Can. LRBR 1 at page 3:

The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and exercised in the way the majority directs. Somewhere in between these competing groups are those in management - on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.

The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decision can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for 'cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification which its interest diluted by participation in the activities of the employees' union.

More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of the employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it.

Similar observations have been made by the Ontario Board in Toronto East General and Orthopaedic Hospital Inc., [1974] OLRB Rep. Oct. 671:

4. The section l(3)(b) exclusions represent a legislative recognition that viable collective bargaining requires that employers be able to effectively participate in that adversary process known generally as labour relations. It was felt that effective participation in the labour relations process - a process that centres on collective bargaining - requires some assurance of security in the ranks of management. Moreover, the inclusion of independent decision-makers, particularly decision-makers in the realm of labour relations, in the bargaining unit might compromise the judgment of such individuals. But the section has not been an easy provision to apply. Because of the complexities of the work environment and the need to balance the rights of employees to join and fully participate in a trade union against the employer's interest in maintaining its labour relations, the Board has had to make very difficult judgments in drawing the line that demarcates management from the bargaining unit; (See generally The Corporation of the District of Burnaby and CUPE Local 23 [1974] CAN. LRBR 1 (B.C.); Reed, White-Collar Bargaining Units under the Ontario Labour Relations Act (1969) p.27. For the United States approach to these exclusions see Note, Labour Law - The National Labour Relations Board Redefines and Restricts the Scope of Managerial Employee Classification (1973) 26 'v'and. L. Rev. 850). But because The Labour Relations Act must be interpreted as an Act in the public interest, it is incumbent on persons who seek to exclude employees from the scheme of the Act to prove that such persons exercise managerial functions. (See Bakery & Confectionery Workers I. U.A. v. Salmi 56 D.L.R. (2d) 1973).

5. The Labour Relations Act itself does not contain a definition of the term "managerial functions", nor are there any criteria to guide the Board's interpretation. The task of developing such criteria has been left to the Board itself, and in recognition of the fact that the exercise of "managerial functions" can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. An especially important question from a collective bargaining point of view is the extent to which so-called "managers" make decisions which significantly impact upon the economic lives of their fellow employees, thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases, or discipline employees, are all manifestations of managerial authority which could produce collective bargaining problems when exercised in respect of persons within the same bargaining unit. Indeed, this Board (but not others in Canada - see British Columbia Telephone, 76 CLLC 16,015 at page 467) has often extended the ambit of section 1(3)(b) beyond the actual or ultimate decision-maker to those who make what the Board has called "effective recommendations" which materially affect the conditions of employment of those supervised. In framing the test in this way, the Board has not ignored the real distinction between a person recommending or influencing a decision, and the one ultimately making it. Supplying information or "input" is not the same as deciding, and a person who does only the former has a much weaker claim when it is suggested that he is exercising "managerial functions".

6. Unfortunately, while it is easy to describe the problem and express the Board's approach in a general way, it is frequently very difficult to draw the line - particularly as collective bargaining extends to white-collar and professional employees where the Board has to deal with increasingly complex job hierarchies and reporting structures. Collective bargaining first emerged as a response by blue-collar workers to a perceived inequality of bargaining power and the basic statutory framework was developed in the 1940's and 1950's in response to such concerns. Since then, however, collective bargaining has extended beyond mine and mill to hospitals, government organizations, universities, and even the scientists who worked on the famous retractable arm on the NASA space shuttle: see Spar Aerospace Products Ltd., [1979] OLRB Rep. July 700. For these emerging groups the old tests did not work very well. The "effective recommendation test" was particularly difficult to apply when the "recommendation" involved rendering a professional judgement based on professional training and responsibility.

7. Many of these problems were first explored in the health care industry where large groups of professional, paramedical, technical, and unskilled employees must work together in an institutional setting. In the case of professionals, such as registered nurses, it quickly became apparent that they had a special relationship with each other, with their employer, and with employees at lower levels of the job hierarchy. They did things in their professional capacity which would typically be done by "management" in an industrial plant. As the Board noted in Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84 at paragraph 16:

All of these cases, (as well as the nursing home cases referred to earlier) involved individuals who, in varying degrees were performing various supervisory or coordinating functions which historically or in other contexts might have been associated with managerial status. Such functions included: coordinating the work of others, ensuring that the work was done properly in a technical sense, checking and correcting it where necessary, scheduling, arranging for a "fill in" if a member of the team is absent, allowing an orderly or aide to go home a few hours early, giving an opinion on the proficiency, work habits, competence or compatibility of new or lesser skilled employees when asked to do so by a member of management, delegating or rearranging work assignments, calling in plumbers or maintenance persons to handle mechanical break-downs on "off-shifts", attempting to ensure compliance with the institutional "rules" laid down by management and admonishing or reporting an employee who did not comply, consulting with management on the running of the enterprise, and, even, on occasion, requiring an employee unfit to work to go home for the balance of the shift then reporting the incident to the director of nursing for disposition. Each case, of course, turns on its own facts, but their general thrust is the same: supervisory, coordinating, reporting, consulting and minor admonitory functions were not, in the opinion of the Board, (and in the context of this industry) considered to be "managerial functions". They did not signify the kind of effective control or authority over the employee and his employment relationship which justified exclusion pursuant to section l(3)(b). And in a professional context where "reporting" is part of an individual's professional responsibilities and the actual decisions are made by someone else (usually an "administrator" who may or may not be a professional himself) then the "effective recommendation test" referred to above must be carefully applied. (For specific comment on employee evaluations and the need for clear evidence of their impact see: Toronto East General Orthopoedic Hospital, supra, at 16; Ajax and Pickering Hospital, supra, at 17; Mascassa Lodge, supra, at 19-10 [sic]; St. Peters Hospital, supra, at 7-8; Regional Municipaliry of Halton, supra, at 10; and Sudbury and District Health Unit, Board File No. 2055-79-M decision released March 11, 1981, unreported at paragraph 13.)

The Board also noted that in applying section 1(3)(b) to these complex job hierarchies or professional groupings, it was defining access to collective bargaining. Rights guaranteed by section 3 should not be limited in the absence of hard evidence of the mischief section 1(3)(b) is intended to avoid:

12. Persons who exercise skills which have been acquired through years of training or experience will necessarily have considerable influence over those who are less trained or experience. The most highly trained or skilled employees will routinely supervise the work of others, and it is part of their normal job functions to train and direct such persons, and to instill good work habits. Frequently, it is only the most senior or experienced employees who will fully understand the technical requirements of the job and, accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. It is part of their job to ensure that appropriate techniques are being applied and that the work is being done properly. Their expertise and technical judgement are an integral part of the group effort. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in coordinating and directing the work of other employees - but this does not mean that they exercise managerial functions in the sense contemplated by section 1 (3)(b) and must therefore be excluded from the ambit of collective bargaining. To adopt so rigid a view would deny thousands of skilled or professional employees the right to engage in collective bargaining, simply because they typically work in semi-autonomous work groups which include a variety of individuals with lower level of skills, education or training (in the case of "master craftsmen"~ these would include "journey-men", "apprentices", and assorted "helpers"; and in the case of "professionals"; a variety of "technologists"; "technicians"; assistants and aides). To hold that persons with higher levels of education or training (whether acquired on the job or otherwise) exercise "managerial functions" with respect to lesser skilled or unskilled individuals at lower levels of the job hierarchy would be tantamount to saying that the Act has no application to much of highly trained and educated work force which is characteristic of the emerging high technology industries. This is not to deny that professional or technical employees may also exercise "managerial functions" within the meaning of section l(3)(b). It is simply that the focus should be upon those functions which have a direct and provable impact (positive or negative) upon the terms and conditions of employment of the alleged subordinate employees. It is that kind of function which raises the "collective bargaining" conflict to which section l(3)(b) is addressed, and it is this collective bargaining purpose which must be kept in mind when the Board is exercising the broad authority granted to it under section l(3)(b), and is forming its "opinion" in particular cases.

13. Oakwood Park Lodge was a case in which a nursing home operator claimed that his entire complement of registered nurses was "managerial" because, to ensure the delivery of proper care, they had a degree of responsibility for supervising the activities of various registered nursing assistants, health care aides, orderlies, and so on. That was a plausible position, but after an extensive review of the facts, the purpose of 1 (3)(b), and the pattern of collective bargaining in the industry (which was by then well established), the Board concluded that the functions performed by the nurses were part of their professional responsibility and they should not be considered part of the employer's "management". That decision was taken by the employer to the Divisional Court, which declined to intervene (see Medi-Park Lodges Inc. carrying on business as Oakwood Park Lodge v. Ontario Nurses' Association et al., 82 CLLC 14,016). The Court held that the determination that the registered nurses did not exercise managerial functions was a finding of fact within the Board's exclusive jurisdiction, but went on to note that:

In our view, the reference to unionization in other facilities of the applicant, as well as the consideration of developing themes in relation to the role of professionals in collective bargaining are matters within the expertise of the Board which it can consider in evaluating the case before it.

In our view, we are entitled to take into account "developing themes in relation to the role of professionals in collective bargaining" and the way principals have been dealt with where collective bargaining is already established.

49. We have gone on at such length because of the respondent's forceful assertion that its principals should be regarded as "management". Should they?

II

50. What is absolutely striking about the evidence in this case is the absence of any regular or material involvement by the principal in decision-making which significantly impacts upon the employment relationships or terms or conditions of employment for occasional or even contract teachers. We find ourselves in the same situation as the Board did in York No.2. At paragraph 28, the panel observed:

51. What is interesting about this evidence is the absence of a clear line between 'superiors" and "subordinates" - "management" and "labour" - of the kind which one might expect to find in a more traditional industrial setting. Here, it is very difficult to determine precisely how much independent influence the principal or vice-principal actually has. Insofar as contract teachers are concerned, the evidence reveals little of the industrial relations conflict which section l(3)(b) was designed to avoid (see Corporation of the District of Burnaby [1974] I Can. LRBR at p.3; and Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199). But perhaps that is not so surprising. In this professional context, the members of the OSSTF bargaining unit are all highly trained and responsible persons who are largely self-motivated, capable of exercising independent judgment, and requiring little external direction in the performance of their regular duties. Such direction as is necessary can be generated internally through group discussion, evaluation by peers, or "collegial" modes of decision-making, and one would not expect the managerial structure appropriate for professionals to be the same as that for manual workers. Professional employees will have a special relationship with their employer and with their fellow professionals.

52. The evidence establishes that the principals and vice-principals do not exercise much direction or control over the occasional teachers - not because they do not have the ultimate authority to do so, but rather because the occasion does not arise. Arranging for the employment and supervision of occasional teachers is a minor aspect of the principals' (or vice-principals') role and, on the evidence, the critical decisions for most occasionals are made by the department heads. For the most part, it is the department heads who determine who will be called and it is the department heads who make a professional assessment about the abilities of particular occasional teachers. The exercise of such authority, however, is so attenuated, sporadic and diffused that it is not very much different from the kind of authority exercised in an industrial context by senior or regular employees who may be called upon to express an opinion on the abilities of students, probationary employees or temporary employees with whom they work from time to time. Such recommendations are likely to be given considerable weight with respect to these casual employees, not because those expressing them have ''managerial authority", but because the recall of one casual as opposed to another does not matter very much, so long as they display a minimum level of competence. The persons with whom they work directly are in the best position to express an informed opinion.

53. Peer review or evaluation is not uncommon in a professional setting, and is not, in itself, a managerial function within the meaning of section l(3)(b). In a hospital context, a registered nurse might be called upon (and under an obligation) to express an opinion on the professional judgment or competence of a fellow nurse (full-time or casual), or an RNA. The expression of such opinions would not remove her from the bargaining unit or raise questions about the status of the Ontario Nurses' Association (see: Ottawa General Hospital, supra, and Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84). In a university setting, appraisal by professional peers is institutionalized, and it is not at all unusual for "tenure committees" composed of various members of the academic staff to determine or recommend whether other academics will be promoted or given tenure, or for a committee of professors to interview prospective colleagues and make an effective recommendation as to which of several candidates should be hired. This is not to deny that professional employees may also exercise "managerial functions" within the meaning of section l(3)(b). It is simply that there must be a careful appraisal of the professional context. The adversarial model, conflict of interest rationale, and "two-sides approach" to collective bargaining is not easily applied to a group of professionals - as the Legislature undoubtedly recognized when it determined that principals and vice­-principals should be included in the same bargaining units as their fellow teachers.

54. For these reasons, we have had some difficulty deciding how section l(3)(b) would be applied to the relationship between principals and contract teachers if they were covered by the Labour Relations Act, and how it should be applied to the relationship with occasional teachers who are covered by the Act. It has been difficult to pinpoint just where managerial authority resides....

55. Here, in practice, principals do not hire, fire, promote, demote, or evaluate occasionals. Those concepts have virtually no application to casual employees. The wages paid to the occasionals appear (paradoxically) to be determined by a formula prescribed in a collective agreement between the applicant and the respondent. There is no evidence that the principals have any role to play in determining the occasionals' terms and conditions of employment. When work opportunities arise, the selection of who will perform the work is done by a telephone answering service which simply goes down a pre-established list which takes into account the occasionals' own preferences and availability. Access to that list and therefore to potential work opportunities is controlled by Mr. Hyland, who has the responsibility to establish a sufficient pool of competent supply teachers to meet the respondent's needs. Even a principal's dissatisfaction with an occasional's performance or personality does not result in his being struck from the list; for, according to Mr. Hyland, he first tries to "heal the situation" and if he cannot, he merely ensures that the individual is not sent to that school. Any actual deletions from the list are done by Mr. Hyland and are extremely rare - as one would expect if, in the first instance, there was a proper assessment of the occasionals' qualifications. Even in the case of long-term occasionals where the principal's opinion appears to be more important, the selection is done jointly from a group pre-screened by Mr. Hyland and the recommendation is sent "up the line" ultimately to the elected board of education. The evidence does not indicate how many long-term occasionals there are or the nature of the relationship between the principal and these long-term supply teachers. Again, it would appear that the terms and conditions of employment are fixed, promotions or demotions are irrelevant, and that a favourable evaluation would, at its highest, result in a long-term occasional being given favourable consideration should a contract position become available in the bargaining unit of which the principal himself/herself would be a member. There is no evidence that a principal or vice-principal has ever had a role in terminating a long-term occasional or ensuring that such individual was never rehired on a long-term basis.

56. The principal's authority over regular contract teachers is equally attenuated. That role is described above and need not be repeated. Those facts do not cry out the mischief to which section l(3)(b) is directed. On the contrary. Hypothetically, a probationary teacher's passage to permanent status can depend upon the favourable recommendation of the principal. But with declining enrolments, there have been few new hires and it is admitted that the transition to full-time status is virtually automatic. The discharge of a teacher, for cause, is a rare and traumatic event involving principals, colleagues, supervisory/administrative staff and ultimately the Board of Trustees. The principal may make a recommendation, but it is not obvious that it is the critical or effective one. Performance evaluation does not in practice (at least on the evidence) result in a disciplinary response or even, it seems, much likelihood of a financial penalty. It is treated as a problem of training and professional development which does not necessarily impair a teacher's career advancement. As Mrs. Kelck testified, if she discerned a problem she would call in senior teachers and consultants to assist the teacher in difficulty.

57. Finally, the Legislature really must have the last word. Whatever this Board might think, the Legislature has clearly decided that principals and teachers can be in the same bargaining unit and be members of the same bargaining agent without causing the problems which section l(3)(b) is designed to avoid. That issue was apparently a matter of debate before the Matthews Commission reviewing Bill 100 and both the Commission and the Legislature decided that principals and contract teachers could be and should be included in the same bargaining unit and represented by the same bargaining agents. That legislative choice was also the subject of comment in York No. 1 at paragraph 60:

58. Before leaving this topic, we observe that the characterization of principals' duties for collective bargaining purposes has been the focus of attention on more than one occasion. The Reville committee considered whether or not principals should be excluded from bargaining units under teacher/school board collective bargaining legislation. The question was a difficult and controversial one. There were strong opinions on both sides of the question; the committee members could not agree on an answer. One member felt principals should be and were managerial, and should be excluded from any bargaining unit. The majority accepted that principals were teachers first and foremost and should be able to join with teachers in collective bargaining with boards, but felt they should have the option of forming their own bargaining units if they wished. The legislature ultimately included principals and vice-principals in the teachers' bargaining unit. It cannot be assumed, in the circumstances or at all, that in taking that approach the legislature was oblivious to this important and difficult question and the debate it had engendered. On the contrary, it should be assumed that the provisions of Bill 100 represent the legislature's conscious assessment that the duties and responsibilities of principals are not so "managerial" as to require their exclusion from a bargaining unit of contract teachers represented in bargaining by branch affiliates within the meaning assigned to that term by the legislation. Indeed, the same legislature which enacted paragraphs l(l)(p) and l(3)(b) of the Labour Relations Act also enacted Bill 100, assigned a collective bargaining role to branch affiliates of OSSTF, decided that principals fell on the employee side of the managerial line, and directed OSSTF's branch affiliates to represent units of contract teachers, including principals. This suggests that the legislature considered OSSTF to be "an organization of employees formed for purposes that include the regulation of relations between employees and employers"~ and reinforces our conclusion that OSSTF fits within the definition of "trade union" under the Labour Relations Act even assuming, without deciding, that from the perspective of the Labour Relations Act principals might be regarded as exercising managerial functions....

59. The evidence before us confirms the wisdom of that legislative choice, since the kind of "mischief' that section 1 (3)(b) was designed to avoid does not seem to have materialized here. That being so, and taking a purposive view of section 1(3)(b), on the evidence before us we would not be inclined to conclude that principals exercise "managerial functions" even if section 1(3)(b) applied to them. But what if we were wrong?

Would it matter whether principals are managerial? Does a trade union cease to be one if it admits managerial personnel into membership?

55. Is it legally significant that an employee organization includes among its members some relatively small proportion who exercise managerial functions and so could not be regarded as employees under the Labour Relations Act or related collective bargaining legislation? Does its status as a trade union depend upon maintaining its purity? Does a union lose its status and ability to represent employees because it admits to membership those who are not? These questions were canvassed at considerable length in York No. 1 and York No. 2, and, in the interest of economy of exposition, we were tempted to simply indicate the numbered paragraphs in those decision with which we are in agreement. But to do that, would mean that a lay reader, without access to a law library or other source of the Board's reports, would not know what the Board is referring to or has taken into account. Since this is the first case in which OPS has tried to establish its status, and other cases and parties may be interested in or influenced by it, we have opted (at the risk of prolixity) to quote extensively from these earlier Board decisions.

56. York No. 1 involved an application for certification in which OSSTF which sought to represent certain teachers employed by the Board of Education for the City of York at Humewood House, a residential facility operated by the Humewood House Association and licenced as a children's residence under the Children 's Residential Services Act. A key, and ultimately the determinative issue in that case was whether those teachers were employees under the Labour Relations Act or teachers as defined in Bill 100. But the Board also considered the respondent's argument that OSSTF was not a trade union within the meaning of section 1(1 )(p) of the Labour Relations Act because its membership included principals. The employer relied upon their administrative duties prescribed by the Education Act and the statutory obligation to be a member of OSSTF.

57. The Board reviewed a number of cases commencing with Hydro-Electric Power Commission of Ontario ("HEPCO"), [1971] OLRB Rep. Aug. 501. Having done so, the Board made the following comments at paragraphs 56-61 of its decision:

58. The HEPCO case held that the phrase "organization of employees" must be read as "organization of employees only"~ having regard to the precision with which the meaning of the word "employee" is limited by paragraph l(3)(b) of the Act. That reading of the language of paragraph l(l)(p) would exclude from trade union membership not only managerial persons, who would be considered . 'employees" but for the deeming provision of paragraph l(3)(b), but also persons who are not in any sense of the word anyone's "employee". If that were the intention of the Legislature, then why it did it so carefully use the "person" in section 3 when describing those who may join and participate in trade unions? The use of that word must at very least contemplate trade unions having members who are not . 'employees" because they are unemployed: see Ottawa General Hospital, supra, at paragraphs 24 and 26. While the language of section 3 of the Act does not create for managerial persons a protected right to join and participate in the activities of a trade union, that language is clearly inconsistent with an interpretation of section l(l)(p) which requires that the phrase . 'organization of employees" be read as "organization of employees only". It is noteworthy that none of the decisions which favour the "employee only" interpretation of section l(l)(p) makes any reference to section 3 of the Act.

59. The HEPCO "employee only" interpretation of paragraph l(l)(p) not only fails to take the language of section 3 into account, it also comes into conflict with characteristics of organizations commonly thought of as trade unions. We have already observed that craft unions tend to have "managerial" members, and that an "employees only" definition would prevent the unemployed from joining trade unions. It must also be recognized that trade unions are often employers themselves; indeed, trade union employees can be and have been the subject of certification applications. In defining a bargaining unit of trade union employees, paragraph l(3)(b) comes into play and those who act on the union's behalf in hiring, firing and directing the work of its employed staff will be excluded as "managerial". If paragraph l(l)(p) means what HEPCO says it does, then either those managerial persons would have to give up their union membership, or the trade union would have to give up its managers or its employees or forfeit its ''status''. This is an absurd result.

60. It is important to note also that the Labour Relations Act expressly defines "trade union" to include provincial, national and international trade unions. Many such organizations exist. Some existed, as OSSTF did, before the Ontario legislature enacted any collective bargaining legislation; those organizations are not disqualified as trade unions by the fact that their founders were not persons then covered by such legislation. A trade union may function in a number of jurisdictions and under a range of collective bargaining statutes. It is not disqualified as a trade union in Ontario by the fact that its members in those other jurisdictions and under those other statutes are not persons covered by the Ontario Labour Relations Act. It can be expected that the legislature in each such other jurisdiction will have recognized that collective bargaining requires an arms-length [sic] relationship between "employees" on the one hand and their "employer" on the other, and that in the interest of both sides it is necessary to put "managerial" employees on the employer's side of the table in shaping any particular collective bargaining relationship. It may be supposed, therefore, that each jurisdiction and each collective bargaining statute will draw that managerial line or assign the task of line drawing to a tribunal empowered to administer the statute. While the principle of separation of employer and employee interests may be clear, the result of its application may vary from jurisdiction to jurisdiction, from statute to statute and from tribunal to tribunal. A legislature may feel that the various interests involved in collective bargaining generally, or in certain employment sectors in particular, are better served by drawing the "managerial" line at a point different from that at which this Board might have drawn the line in the same circumstances. It would seem peculiar and, frankly, pretentious if we were to deny an international, national or provincial trade union the opportunity to represent Ontario employees merely because some legislative body or administrative tribunal has required it to represent persons whom we would not, by reason of their duties, have included in a bargaining unit established under the Labour Relations Act. It is one thing to be ever vigilant against the mischief of company dominated unions. It is quite another to insist that those organizations which appear before this Board as trade unions conduct themselves in accordance with our views of membership purity regardless of the consequences to their ability to function in other jurisdictions. When public sector unions (OPSEU, for example) come before this Board for certification under the Labour Relations Act we do not require of them proof that in their representation of employees under other statutes they have not undertaken the representation of, or accepted as members, persons whose job functions might appear to us to be "managerial".

61. We conclude that the phrase "organization of employees" in paragraph l(l)(p) of the Act does not mean "organization of employees only". The mere fact that an organization has in its membership persons whose employment requires them to exercise managerial functions within the meaning of paragraph l(3)(b) of the Act will not stand in the way of a finding that the organization is a "trade union" within the meaning of paragraph l(l)(p) of the Act, if it otherwise qualifies to be so described. We respectfully decline to follow those earlier decisions which held otherwise. We acknowledge and share the concern those earlier decisions expressed about the "potential for conflict of interest" which can appear when managerial employees are members of trade unions. The need to keep employers and bargaining agents at arm's length is fundamental to the scheme of the Labour Relations Act, but the right of employees on a majoritarian basis to freely choose their bargaining agent is equally fundamental. As a result, it is not for the Board to withhold rights from a freely selected trade union on grounds other than those contemplated by the Act. Sections 13 and 48 speak to actual employer participation and support. A speculative concern about an organization's vulnerability to employer domination no more justifies denial of representation rights than would a concern that the composition of a trade union's general membership, or of another bargaining unit it represents, might divert it from the single-minded pursuit of the interests of the employees in the particular bargaining unit it seeks to represent (see H. Gray Limited, 55 CLLC 18,011, and Canadian Iron Foundries, 56 CLLC 18,027). The Labour Relations Act provides safeguards against the realization of any potential for conflict of interest. By virtue of section 68 of the Act, a trade union which acquires the right to represent the employees in a bargaining unit assumes a duty to act fairly toward those employees in exercising that right, and that will require that the trade union avoid conflicts with the interests of persons excluded from that unit. While managerial membership alone will not trigger sections 13 and 48, the potential application of those sections to the trade union and, consequently, of section 64 to some one or more employers, will throw a spotlight on the reasons for such membership, and on the nature and degree of such members' participation in the affairs of the trade union. In the ordinary case, one would wonder why a person would join an organization devoted to collective bargaining in which it cannot represent him. When he is actively involved in those collective bargaining activities, one's wonder would grow at tolerance by his employer and by the trade union of any apparent conflict of interest, especially when the managerial employee had no protected right to join the trade union or participate in its activities. While it will be a question of fact in each case whether managerial members are acting on behalf of employers, there will be some cases where the absence of any explanation for the managerial employees' membership and active participation in a trade union may support an inference of employer domination. There will be few cases where, as here, the employees' allegedly managerial duties and concurrent trade union membership can be explained by the fact that both are compelled by law. Thus, sections 13, 48 and 68 encourage trade unions to confine the influence of managerial members; section 64 provides a similar incentive to employers. These provisions, together with the bargaining unit's ultimate remedy of changing or terminating its bargaining agent, are the safeguards the legislature has decided to provide for "conflicts of interest" in a system of free collective bargaining in which the concern for viable and independent bargaining representatives must share attention with the concern for the freedom to choose bargaining representatives on a majoritarian basis.

62. As we noted earlier, the Board found OSSTF to be a trade union in Board of Education for the Borough of Scarborough, supra, where that question had been put squarely in issue. By virtue of section 105 of the Labour Relations Act, that earlier finding constitutes prima facie evidence of that fact in these proceedings, and that prima facie evidence has not been rebutted. Accordingly, we find that the applicant is a trade union.

63. The very same question arose in York No. 2, where quite a number of occasional teachers had expressed an interest in collective bargaining but apparently had different views about the organization best able to represent them. Some occasionals opted for membership in the Ontario Public Service Employees Union which currently represents occasional teachers employed by the Toronto Board of Education and community college teachers under the Colleges Collective Bargaining Act. Others opted for membership in OSSTF which represents the contract teachers that the occasionals replace both in York and at other boards of education in Ontario. The respondent employer and OPSEU both took the position that OSSTF was not a trade union and that, therefore, it could not properly appear on the ballot for pre-hearing representation vote which the Board had directed. Their assertion was that since OSSTF was not a trade union, it was not a choice properly open to the occasionals seeking representation. The arguments are summarized at paragraphs 33-40 and are similar to those raised in the earlier York decision and by the respondent in this case:

64. The position of the respondent and the intervener can be quite simply stated. They argue that under section 1(1 )(p), a trade union is an organization composed exclusively of employees or of employees only. A trade union cannot be an organization of employees and others; and, in particular, a union cannot include among its membership persons who are not employees under the Act, and could not be considered employees because of section l(3)(b). Of course, strictly speaking, section l(3)(b) cannot have any application because all contract teachers, including principals, vice-principals and department heads are excluded from the Act because of section 2(t). However, the respondent and intervener argue that principals and vice-principals and department heads, individually or collectively, have effective managerial authority over the occasional teachers, of a kind and character which would fall within the ambit of section 1 (3)(b) if it applied to them. It is argued that because they are also members of OSSTF, OSSTF cannot be considered to be a trade union. It follows that OSSTF is not entitled to represent occasional teachers and that occasional teachers are precluded from selecting OSSTF as their bargaining agent. We were referred to the following Board decisions: Hydro Electric Power Commission of Ontario, [1971] OLRB Rep. 501, Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 84, Chrysler Canada Limited, [1975] OLRB Rep. Nov. 852, Armour Associates Ltd., [1976] OLRB Rep. March 117, Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651, and Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889. Particular reliance is placed on the HEPCO case, supra, which held that an organization which included among its members persons who exercised managerial responsibilities, was not a . 'trade union" within the meaning of the Act, because a "trade union" must be composed exclusively of employees.

65. In reply, OSSTF points out that all of the decisions relied upon by the respondent and intervener are clearly distinguishable on the basis that none of the associations dealt with in those cases had, as OSSTF does, a far-reaching and independent base comprising thousands of members, and an established independent collective bargaining role under another statute. OSSTF cannot possibly be considered a weak, dependent, or "company-dominated" organization, controlled by "agents as management"; nor can the respondent plausibly make that claim. That is the "mischief' which concerned the Board in HEPCO and the other cases mentioned above, but it is not present here. Indeed, it is OSSTF's forthright and effective advocacy on behalf of teachers' interests which may make it attractive to the occasional teachers.

66. In OSSTF's submission, the purported conflict of interest referred to by the respondent and the intervener is a "red herring" which, in practice, is unlikely to occur, and which has not interfered with orderly collective bargaining in the education sector where principals and vice-principals are, by statute, included in the bargaining unit with contract teachers. The Legislature considered whether the exercise of administrative or supervisory functions prevented principals and vice-principals from being included in a bargaining unit along with their professional peers and decided that it did not. OSSTF urges the Board to consider this particular professional context and legislative choice, and not to "second-guess" the decision of the Legislature. OSSTF also notes that no occasional teacher has raised any concern about the composition of its membership. Only the respondent and intervener have done so. OSSTF asks rhetorically: why should occasional teachers be deprived of the right to choose OSSTF because of the respondent's allegations of conflict of interest? Even from the respondent's perspective, there is no reason to believe that principals, vice-principals and department heads will not be able to continue to fulfill their responsibilities to the respondent just as principals and vice-principals currently do with respect to contract teachers. The alleged managerial role does not impede collective bargaining under Bill 100, and, if anything, it is more marked in respect of contract teachers than occasionals. OSSTF asserts that the respondent and intervener are attempting to import as critical criteria in this jurisdiction, factors which both the Legislature and the Matthews Commission have rejected. If principals and vice-principals can he in the same bargaining unit as contract teachers under Bill 100, without creating a collective bargaining anomaly, then occasional teachers can be represented by OSSTF, if that is their wish. The statutory scheme under the Labour Relations Act is flexible enough to accommodate any difficulties without finding that OSSTF is not a "union".

67. OSSTF further argues that the Board has no jurisdiction to read the word "exclusively" or "employees only" into the definition of a trade union found in section l(l)(p) of the Act. The Board cannot add a qualification which does not appear on the words of the statute itself (see: Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972] 2 0. R. 498), and there is no need to do so here where the membership of OSSTF, including any arguable anomalies, has been prescribed by law. The so-called managerial personnel are members of OSSTF because the Legislature has prescribed that they must be. Moreover, the fact that OSSTF, or any other union for that matter, may have among its members persons not covered by the Labour Relations Act is inevitable, given the fragmented legislative jurisdiction over labour relations. OPSEU also includes thousands of employees who are not covered by the Labour Relations Act, but that does not mean it is not a trade union when it seeks to organize employees who are covered by the Labour Relations Act. Because the Canada Labour Code applies to "supervisors", any union operating in the federal jurisdiction will quite likely have among its members persons whom the Board would consider "managerial". Again, that does not mean that a union operating in the federal jurisdiction cannot be a trade union under the Labour Relations Act. A union might not be able to represent such persons under the Labour Relations Act, however, that does not mean that they could not be taken into membership. A union does not cease to be a union if it offers membership to persons to whom the Labour Relations Act has no application - such as a lawyer, architect, agricultural employee, crown employee or teacher. There is a distinction between the right to join or be a member of a trade union, and the right to have that union represent you for collective bargaining purposes. A teacher could join OPSEU without affecting its union status even though OPSEU could not represent that teacher in collective bargaining.

68. In OSSTF's submission, it is an organization of employees in fact. Teachers are employees. So are principals, vice-principals and department heads. OSSTF does not cease to be a union because its membership may include some persons who might not be considered employees under the Labour Relations Act if that statute were applied to them. It is artificial to apply a section 1 (3)(b) standard to persons to whom it does not apply at all, yet ignore the statute and experience which does govern the collective bargaining relationship of most teachers in Ontario and suggests that there is no collective bargaining anomaly if teachers higher in the administrative hierarchy are included in the same bargaining unit as those further down. Insofar as the Labour Relations Act does apply to members of OSSTF, there are no such members who exercise managerial functions.

69. Counsel for OSSTF notes that section 3 of the Labour Relations Act contemplates that any "person" is entitled to join a trade union and participate in its lawful activities. This, in itself, suggests that membership can be extended to non-employees. If it were otherwise, and if the Board were to apply a strict and literal meaning, the word employees in section a union would cease to be a union if any non-employee (retirees, spouses of members, the unemployed, etc.) were admitted to membership. Unions are not restricted by law to collective bargaining activities, however, if the respondent and intervener are right, any enrolment of non-employee members to pursue other endeavours (a co-operative housing project for example) could prejudice the union's status under the Labour Relations Act. But if unions, by law, are not restricted to collective bargaining endeavours, why should collective bargaining considerations be the sole determinant of who can be a union member?

70. OSSTF points out that many craft unions, particularly in the construction industry, count among their members person who have left bargaining units to become foremen, superintendents, and even the proprietors of small businesses. They retain their trade union membership for a number of reasons, the most pragmatic of which is the recognition that the vagaries of the market might well compel a change in their fortunes and a return to employment for which trade union membership is an advantage or prerequisite. They may also want to maintain their entitlement to union pension or welfare funds to which they may have contributed. Whatever the reason, these trade unions do have such persons among their members, and no one would seriously suggest that because of that they fail to meet the statutory definition of "trade union". The Board held otherwise in an unreported case involving the Hamilton Construction Association and Builders Exchange, and that view was sustained by the Court in Hamilton Construction Association and Builders Exchange v. OLRB 1963 CanLII 274 (ON HCJ), [1963] 2 OR. 393. There, it was found that Local 18 of the United Brotherhood of Carpenters and Joiners of America included among its membership certain superintendents and non-working foremen who exercised managerial functions in the sense intended by section l(3)(b) of the Act, but neither the Board nor the Court was persuaded that Local 18 was not a trade union within the meaning of the Act.

71. Finally, OSSTF asserts that in light of the Charter of Rights guarantee of freedom of association, the Board should be loath to restrict the group with whom the occasional teachers (should they so wish) can associate for collective bargaining purposes. OSSTF argues that no such restriction is warranted unless there are compelling reasons of industrial relations policy. No such reasons are apparent here. If anything, the existing framework for teacher collective bargaining suggests that in this context, the potential for conflict between one teaching professional and another has not been regarded by the Legislature as having overriding collective bargaining significance. OSSTF asserts that section 3 should be given a liberal interpretation and any questions concerning the quality of representation or the union's independence are addressed elsewhere in the Act.

After considering and largely adopting the views of the panel in York No. 1, the Board went on to say:

42. We do not think any useful purpose would be served by reviewing the details of the Board's reasoning in the Humewood House decision. That reasoning comprises some thirty­five singled spaced pages, including a thorough review of all of the cases upon which the respondent there relied. The respondent and OPSEU rely on the same decisions in this case. We are not convinced that in this case we should depart from the views and approach found in paragraphs 38 to 61 of the Humewood House decision. However, in view of the nature of the issues raised, we think it appropriate to add a few additional comments of our own.

43. We may begin by reiterating the highly unusual context in which all of these questions arise, and the difficulty which this Board faces in applying the Labour Relations Act not only in a professional context but to a fragment of the education sector over which we generally have no jurisdiction, and for which the Legislature has created distinctive collective bargaining structures and rules. We do not think this background can be ignored, nor, apart from the Humewood House decision, is the established Board jurisprudence of much assistance. The circumstances are unique, and this, in itself, distinguishes the present case from all of the decisions upon which the respondent employer relies.

44. OSSTF is no weak and dependent organization, sponsored by the employer and subject to its influence. Its integrity and independence cannot really be questioned, nor can one give much weight to the respondent's suggestion that its own position could be compromised in its dealing with occasional teachers, if OSSTF were found to be a trade union and certified to represent them. Not only is there no evidence whatsoever that principals, vice-principals and department heads would deal with occasional teachers any differently than they are doing now, but such residual concern on the respondent's part, must be weighed against its own submission that principals and vice-principals exercise significant managerial functions under Bill 100 in respect of contract teachers, and are under a statutory obligation to do so. Yet there was no evidence of the kind of conflict of interest which section 1 (3)(b) was designed to avoid. Even assuming that principals and vice-principals have certain administrative and "managerial" responsibilities, it is significant that the Legislature has decided that they all should be included in the same bargaining unit as other teachers. We do not minimize the importance of preserving the independence of the employees' bargaining agent, but in this unusual context, and from a purely policy point of view, we see no reason to lean towards an interpretation of the Labour Relations Act which would prevent occasional teachers from choosing OSSTF to represent them. If anything, the circumstances suggest that the Board should lean in the other direction.

45. We do not find the language of section l(l)(p) as clear and compelling as the respondent and intervener suggest. Despite the gloss given to the statutory language in the HERCO decision, the fact is that the Act does not expressly require that a trade union be composed exclusively of employees or of employees only; and since a trade union is not confined to purely collective bargaining functions, one can easily envisage a variety of activities in which non-employee members might wish to engage: co-operative housing programmes, political activity, mutual insurance schemes, etc. Conversely, section 3 of the Act suggests that union membership should be open to "persons" - not "employees" - wishing to participate in these lawful activities. Even within the realm of the union's core functions - collective bargaining - it is obvious that from time to time it will number among its members persons who are unemployed, and section 106(2) of the Act recognizes that a union may include among its members persons exercising managerial functions, because the definition of that term can often be subject to debate. Obviously such inclusion should not, in itself, prejudice the organization's status as a trade union.

46. While the respondent employer suggests that there may be serious consequences for employees and their unions if management persons are admitted into membership, there is no evidence that that has been the experience in the education sector, nor in the context of construction trade unions which often permit managers and even small employers to continue to "carry their cards" against the day that they might have to "return to the tools". It would certainly be a surprise to the labour relations community if the Board were to hold that, because of this practice, all of these organizations are no longer trade unions. Yet that is what would flow from the interpretation the respondent and intervener urge upon us. It would also be a surprise to the union, such as the Communications Workers of Canada, which operates in the federal jurisdiction where supervisors are included in its bargaining unit and are eligible for membership. Nor can it be said that because a trade union's membership base is not covered by the Act, it cannot be a union within the meaning of the Act. If that were the case, OPSEU, the exclusive bargaining agent for Crown employees, could not represent employees in the private sector. The word employee in section l(l)(p) cannot be restricted to employees covered and defined by the Labour Relations Act or unions like OPSEU or the Quebec-based CNTU, whose origins and membership are in other jurisdictions, could not seek to represent employees under the Labour Relations Act. We do not think OSSTF loses its right to claim status as a union, because, by law, it must include people who are not covered by the Act, and who may exercise managerial functions vis-a-vis employee-members who are covered by the Act. Any anomalies can be effectively contained by sections 13, 48, 64 and 68, rather than the interpretation of section l(l)(p) urged upon us by the respondent and intervener.

47. Does this shift of focus from section l(l)(p) to sections 13, 48, 64 and 68 represent any retreat from the Board's often-stated concern about company-dominated unions or the independence of the bargaining parties? We do not think so. In our view, those sections provide ample protection should members of OSSTF, acting on behalf of the employer, seek to influence the employees' choice as to whether they should join a trade union or which trade union to join. Of course, it will be a question to be determined in each case whether a member of OSSTF was not acting on its behalf but on behalf of the employer, because it cannot be assumed that even someone in a so-called managerial position will necessarily be acting in the employer's interest when he encourages other employees to join a union. A case in point is Municipality of Casimir, Jennings & Appleby, [19781 OLRB Rep. Feb. 130, application for judicial review dismissed, July II, 1978 (unreported). There, the "lame duck" reeve actively solicited support for the union and both the Board and the Divisional Court concluded that the reeve was not acting on behalf of the employer, but actually against its interests. Of course, as the Board noted in the Humewood House decision, supra, the involvement of such persons in an organizing campaign would certainly raise a question which OSSTF or any other union would have to address, and the Board might well question the voluntariness of any membership evidence solicited by such individuals (see Veres Wire Limited, [1976] OLRB Rep. July 337) and might either discount such evidence or exercise its discretion to seek the confirmatory evidence of a representation vote. Under section 68 of the Act, any purported representation of occasional teachers by persons directly involved in their case or unable to faithfully play the role of independent advocate would trigger liability, just as it did in Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643. In that case it was held that the Ontario Nurses Association breached its duty of fair representation when a union official who had rendered a professional judgment on the competence of a fellow nurse, purported to represent the union in a consequent disciplinary meeting with management. Section 68 presents a potent check on any inclination OSSTF may have to ignore the concerns of occasional teachers or sacrifice their interests to those of other OSSTF members - a possibility mentioned by the Matthews Commission in its report. We are not at this stage prepared to make the assumption that OSSTF or its members would do so.

48. For the foregoing reasons, we are satisfied that OSSTF is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act. It is an organization of employees formed for purposes that include collective bargaining. There is no evidence before us to trigger section 13. We are satisfied, therefore, that the certification application can proceed. It remains to determine how one should apply the Act to the rather unique employment situation of occasional teachers.

49. In summary then, there is nothing in the evidence of this case to distinguish it from York No. 2. If anything, the respondent's principals exercise even less control over the occasionals' working conditions and work opportunities than was the case in York No. 2. Whether we apply this Board's own criteria developed under section 1 (3)(b) of the Act, or such enlightenment as can be gleaned from the structure of Bill 100, we would not (and do not) conclude that in the context of collective bargaining, principals are "managerial". Nor are we persuaded that these earlier panels of the Board were wrong in their analysis of the statutory framework in which the rights of the parties in this case must be determined. The fact that a trade union may admit non-employees, employees not covered by the Labour Relations Act, or even managerial personnel into membership, does not mean it ceases to be a trade union. And returning to the special circumstances of this case, we are constrained to observe that we do not think the Legislature intended explicitly or implicitly to limit the range of organizations which the occasionals may wish to represent them. Certainly, from a policy point of view, we see little merit in an interpretation of our statute which would limit the occasionals' choice of bargaining agent and effectively preclude them from being represented by the very organizations which one would ordinarily expect to be most familiar with their professional concerns and collective bargaining needs. While the Board must obviously give effect to the words of the statute, we think it is legitimate to ask whether the Legislature intended to prevent the respondent's elementary occasionals from being represented by an organization like OPS. Whatever the general impact of the analysis urged upon us by the respondent, that is the result urged upon us in this particular case.

50. Of course, to decide this case we do not have to embrace all aspects of the analysis in York No. 1 or York No. 2. In particular, we do not have to deal (and neither did they) with a situation in which the applicant is an organization composed of employees under the Labour Relations Act and persons who would be employees under the Labour Relations Act were it not for the fact that section l(3)(b) deems that they are not because, in the opinion of this Board, they exercise managerial functions. This case is not really like HEPCO where the Board struggled with the notion of an organization purportedly composed of "pure employees" and persons who might well exercise managerial authority over those very individuals (see, for example, Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651). Here, the critical group - the principals (and vice-principals) - are not covered by the Labour Relations Act at all. They can never be part of the same bargaining unit as occasionals. They have statutorily prescribed administrative and collective bargaining responsibilities, and when one considers the conflict of interest rationale which underlies the exclusion of management from collective bargaining, the functions they perform are (on the evidence and in context) not, in the opinion of the Board, of a managerial character because they do not make decisions which regularly and adversely impact on the employment conditions or security of other teachers. To the extent that such impact is arguable, or the principals might be said to exercise a "managerial" role precluding participation in collective bargaining, the Legislature has supplied the answer: principals and teachers are, by law, to be assigned to the same bargaining unit and are required to be members of the same statutory bargaining agent. Against this background, it is difficult to hold that OPS cannot be a trade union because it includes among its members persons whose managerial status is at best doubtful even if the Labour Relations Act applied to them, and who are not treated as "managerial" under the statute covering teacher collective bargaining.

Does it matter that most teachers are not covered by the Labour Relations Act?

61. Is there anything to the respondent's point that the vast majority of OPS' purported members (by our calculation almost ninety-nine per cent) although employees at common law and under the relevant "teacher" legislation, are not employees under the Labour Relations Act because section 2(f) says they are not covered? The respondent maintains that while the occasionals are undoubtedly "employees" under the Labour Relations Act, contract teachers are not - hence (it is said) there was no "organization of employees" or "trade union" which the occasionals could join. The fact that OPS has tried to, and purported to, take occasionals into membership is quite irrelevant. OPS was not a "trade union" prior to recruiting some occasionals, and did not become one when it did so.

62. We do not agree. We do not think that the word employee in section l(l)(p) is limited to employees who fall within the ambit of the Labour Relations Act. If that were the case, an organization like the Ontario Public Service Employees Union (formerly the Civil Service Association of Ontario) composed initially of provincial crown employees could not have organized public sector workers covered by the Labour Relations Act. Similarly, an organization like the CNTU/CSN based in Quebec or CAIMAW based in British Columbia could not expand into Ontario because its membership base was not composed of employees covered by the Ontario Act. A union representing craft, technical, or clerical employees of Bell Canada, under federal jurisdiction, could not apply to represent the subsidiaries or dependencies of Bell whose activities fall within provincial jurisdiction. An organization of employees originating in the United States (as the Steelworkers and Autoworkers did) or in some other province, could not expand into the Ontario jurisdiction. Employees who wanted to join any of these organizations would be prohibited from doing so because they had not been present in Ontario before, and subject to the Ontario Labour Relations Act. Yet section l(l)(p) expressly contemplates that there can be both national and international unions, which means that an organization can still be a union even though the majority (perhaps even the vast majority) of its members will not be covered by the Labour Relations Act. And if a union like the United Food and Commercial Workers took agricultural employees into membership and sought to represent them (albeit under the common law collective bargaining rules which governed teacher collective bargaining prior to Bill 100), the UFCW would prejudice its status as a "union" under the Labour Relations Act.

63. We do not accept this interpretation of section l(l)(p) of the Act, not only because of these anomalous consequences, but also because, in our view, it would require us to "read in ' words which are not there. The respondent would have us interpret section l(l)(p) as if it read: " 'trade union' means an organization composed exclusively of employees defined or covered by the Labour Relations Act. But that is not what section l(l)(p) says. In our view, it should be given an expansive reading so as to embrace any employee collective bargaining agency, wherever situated and regardless of the statutes regulating it, so long as the organization represents at least some employees to whom the Labour Relations Act applies, and otherwise meets the definition of 'trade union'. We do not think that the Legislature ever intended that an employee's freedom of association should be circumscribed along such narrow jurisdictional lines or that employee organizations with collective bargaining rights under other legal regimes must be precluded from representing employees under the Labour Relations Act.

64. In conclusion, we find that OPS is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. We turn, then, to the alternative grounds which the respondent asserts prevent OPS from seeking to represent its elementary school supply teachers.

The Constitutional-Discrimination Issue: Does OPS engage in sexual discrimination which would preclude its certification as the occasionals' bargaining agent? Can occasionals and women be "members" of OPS under its constitution and for the purposes of the Act?

I

65. For this branch of the respondent's argument, it is necessary to review some history.

66. As Mr. Andrew pointed out, OPS was initially a voluntary association of male teachers which was incorporated by letters patent at Toronto on February 22, 1921 and was then known as the Ontario Public School Men Teachers' Federation. OPS has represented teachers in professional and other relationships with their employers long before the passage of Bill 100 or any other collective bargaining legislation for that matter. It is a body corporate, and, as such, it is entitled to pursue or change its objectives unless there is some self-imposed or external legal restraint.

67. By supplementary letters patent dated at Toronto on June 22, 1982, the Minister of Consumer and Commercial Relations permitted OPS to delete the term "men" from its name. This initiative was undertaken because of OPS' desire to eliminate "sexist" connotations which were thought to be entirely inappropriate in a modern professional organization. That effort to change its name was opposed by FWTAO and OSSTF and eventually made its way to the Divisional Court. (See: Re Federation of Women Teachers' Association of Ontario et.al. and Minister of Consumer andCommercial Relations et. al. (1984) 1984 CanLII 2175 (ON HCJ), 46 OR (2d) 645.) The Court rejected the challenge and affirmed the change in name, observing in part as follows at page

655:

The goal of the respondent is to change the existing structure by bringing all public elementary school teachers within one organization. The governing bodies of the appellant [FWTAOI and the OTF [Ontario Teachers Federation] have rejected the respondent's [OPS'] attempts to effect a merger of the appellant and respondent, but the respondent has encouraged female teachers to join it as voluntary members. It now has some 480 female members out of a total membership of almost 15,000. The dropping of the word "Men" made the respondent's name more accurately descriptive of its membership (now both men and women), and was also expected to help in the recruiting of more women members.

The appellant opposed any change in the status quo, in which the male and female teachers have separate organizations recognized in the statutes. The question is whether the Minister was wrong in refusing to deny a corporate name change that otherwise reflected the changing nature of the respondent corporation, because of the concern of a rival body that it might lose members. The respondent made no secret of its intention to seek voluntary members from the women teachers, and eventually to have one organization of both men and women for all purposes. It is difficult to see how the respondent could achieve this result if it were contrary to the wishes of the female teachers. The appellant IFWTAD] has almost 30,000 members, about twice as many as the respondent. If the bulk of the women public school teachers wish to continue to be represented separately from the men teachers, then the respondent will not achieve its goal. And if the women all joined the respondent, they would at once be able to take control of it. I do not think any valid reason was shown why the Minister should not have let the teachers themselves be free to indicate by their conduct in joining or not joining the respondent whether there should be one common association, without requiring the respondent to operate with a name that is no longer appropriate.

The status of women has changed drastically since 1921, when the appellant and the respondent were incorporated, and since 1944, when they were given their separate statutory responsibilities. The Ontario Human Rights Code 1981 (Ont.), c.53, now recites that it is public policy in Ontario that every person is free and equal in dignity and rights without regard to sex. It is not clear to me that the existence of separate organizations for men and women teachers is not now an anachronism, which might become more evident if the teachers were permitted to become voluntary members of one common organization, if they choose to do so. In the meantime, the appellant and the respondent can continue to fulfill their responsibilities to their statutory members under the statute.

I am unable to accept the argument of counsel for the appellant that public policy requires the statutory scheme to be changed by statutory amendments before a name change can be permitted as part of a movement that may ultimately lead to those statutory changes. I do not think it would be a proper exercise of the administration of the laws respecting corporate names for the Minister to use his powers to obstruct the legitimate democratic aspirations of a corporation simply because they ultimately may result in statutory changes....

Furthermore, I think the Minister was entitled to regard as favourable to the respondent's application the fact that the Minister of Education did not oppose the change in name that was requested, and took no sides in the debate as to how teachers should be represented.

68. It is difficult to dispute the learned judges' assessment that institutions divided on the basis of sex may well be an anachronism in today's society. Nor can one quarrel with their general notion that one should not lightly interpret the law so as to thwart an organization's "democratic aspirations", or that perhaps the teachers themselves can best decide whom they want to represent them by either joining or not joining a particular organization. Here, of course, we are not dealing with contract teachers, but rather whether occasionals (both men and women) can become members of and be represented by OPS. But the Court's implicit concern about freedom of association is one which we share, and, is recognized in section 3 and the Preamble to the Act.

II

69. Membership in OPS is divided into two categories: statutory membership and voluntary membership. Statutory membership encompasses all male teachers required to be members of OPS because of the Teaching Profession Act, R.S.O. 1980, c.495, section 1(i) and the requirements of the Ontario Teachers' Federation by-laws. Article 4 of the OPS constitution reads as follows:

Article IX' - Membership

Section 1 - Statutory

(a) Every male teacher who:

(1) practices his profession wholly in the public elementary schools of Ontario, or who, under Bylaw 1, Section 4 of the OTC Constitution and Bylaws, has been designated as a member of a public elementary school affiliate; and

(2) is a teacher as defined in The Teaching Profession Act, RSO, 1980, c.493 Section 1(i) is a Member. (1983)

(b) The privileges and responsibilities of a Member of the Federation shall be those as designated by The Teaching Profession Act and by its Regulations, by this Constitution and by the Bylaws made thereunder.

70. Article IV, section 6 deals expressly with occasional teachers who are a category of "voluntary member":

Section 6 - Occasional

(a) Occasional Teacher Membership in the Federation may be granted by the Executive upon completion of application for membership form, provided the applicant:

(1) is qualified to teach in the publicly-supported schools of Ontario, and

(2) is engaged in an educational capacity as an Occasional Teacher as defined in The Educational Act, and

(3) subscribes the application fees of $1.00 with the application, which fee shall be returned if the application is rejected.

(b) The duties, privileges and responsibilities of an Occasional Teacher Member shall be the same as those of Statutory Members.

(c) An Occasional Teacher Member shall be a Member of the District or Districts in which the Occasional Teacher is engaged to teach. (1984)

71. The Teaching Profession Act was passed in 1944, and gave recognition to the Ontario Teachers' Federation (OTF). OTF has among its objects: the promotion and advancement of the cause of education, raising the status of the teaching profession, promoting and advancing the interests of teachers and to secure conditions that will make possible the best professional service, and increasing public interest in educational affairs. OTF provides an umbrella organization for the five affiliates which retain their individual autonomy and select members on a proportional basis to the OTF board of governors. The Teaching Profession Act requires all contract teachers to be members of OTF and a bylaw of OTF, in turn, requires teacher-members to belong to one or the other of the affiliates.

72. That bylaw is a rather curious instrument. It is not a regulation nor does it have obvious statutory force; yet it clearly impinges upon the teachers' freedom of association, requiring them to be members, in some instances, of professional associations organized on the basis of gender, religion, or language. Bill 100 completes the picture by making those organizations the teachers' statutory collective bargaining agent.

73. The Teaching Profession Act, the bylaws of OTF, and Bill 100 stipulate whom OPS must represent, but we do not think they prescribe whom OPS may represent; and, in particular, we do not think that OPS is prohibited from representing occasional teachers. It is interesting to note that the Regulations under the Teaching Profession Act, expressly contemplate "voluntary membership" in OTF by a person who:

(a) is not a member thereof;

(b) holds a teacher's certificate;

(c) is engaged in an educational capacity;

(d) is a member of an affiliated body; and

(e) makes application to the Board of Governors for voluntary membership in the Federation.

An occasional can be a member of OTF provided he/she is a member of an affiliate such as OPS. The bylaws of OTF also refer to OPS under its new name - implicitly recognizing that it admits to membership women who are not statutory members. We doubt whether OTF has the legal authority to prohibit OPS from taking in voluntary teacher members of whatever sex or status, however, whether it does or not, OTF has not done so.

74. A perusal of the terms of the OPS constitution and a consideration of Mr. Andrew's evidence both indicate that, in some respects, occasional teachers may be in a somewhat different position from teachers who must be a member of OPS because the statute requires it. OPS does have different classes of membership which may have different obligations (fees, for example) or different claims or rights of access to OPS' resources. But those differences do not affect trade union status - see Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1119721 1972 CanLII 563 (ON CA), 2 OR. 498 (C.A.). In that case the Board held that CSAO was not a trade union because its constitution provided "for different classes of membership, one class having inferior rights and privileges to the other or others". The Court of Appeal disagreed. "Intermembership discrimination" (to borrow the words of Jessup J.A.) does not impair an employee organization's status or identity as a trade union, although it may raise a bar to certification if the discrimination is of a kind contemplated by section 13 of the Labour Relations Act.

75. However, we do not think that there is anything to the respondent's claim that OPS, in structure or practice, engages in a prohibited form of sexual discrimination. The respondent cannot point to a single incident or practice in which female members of OPS have faced invidious discrimination because of their gender. Indeed, OPS has taken steps to eliminate sexual distinctions among its ranks and has actually encouraged women to join. That women - although a minority, and only "voluntary members" - may fully participate in the life of the organization is evidenced by the fact that OPS has a woman president. The fact that, under Bill 100, OPS can only represent men, reflects the statutory scheme imposed by the Legislature, not the wishes of OPS. The objective of OPS is to have one professional organization representing all elementary school teachers both male and female, and, as the Divisional Court noted, it may well be able to accomplish that objective if it can recruit a sufficient number of women and persuade the Legislature to effect statutory changes. Nor, in our view, is it significant that certain female voluntary members of OPS, may have a weaker claim to OPS financial support in the event of collective bargaining or professional difficulties. This is not gender-based discrimination, but rather a realistic recognition of the fact that these women are compelled, by law, to belong to other organizations to which they are entitled to look for assistance. OPS, quite sensibly, does not try to duplicate the services available elsewhere or from the teachers' statutory collective bargaining agent. There is no evidence that any woman in difficulty has ever been denied assistance by OPS.

76. We are also constrained to note the novelty of an employer pleading invidious discrimination against employees as a way of preventing the certification of an organization which appears to be those employees' overwhelming choice. This is especially interesting in circumstances where, as here, the respondent has apparently been prepared to negotiate with OPS in respect of the wages of the very occasional teachers whom the respondent now says cannot properly be members of, or represented by, OPS. Surely it is curious for the respondent, by its conduct, to say to its occasionals, in effect: "OPS cannot represent you. You cannot be members of OPS. But we will allow OPS a role in determining your wages.

77. We are not satisfied that OPS practices discrimination of such kind as would trigger a bar to its certification under section 13 of the Labour Relations Act, nor are we persuaded that the statutory or constitutional framework within which OPS now operates prohibits it from taking women or occasionals into membership.

III

78. In the circumstances of this case, the decision in Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796, (1970) 1970 CanLII 7 (SCC), 5CR. 425, relied upon by the respondent, can have no application. Metropolitan Life held that an employee could not be a "member" of a trade union for the purposes of the Labour Relations Act if he did not meet the membership requirements in the union's constitution. That decision was reversed almost immediately by the Legislature which~ in response, added sections 1(1)(l) and 103(4) to the Labour Relations Act. Those sections read as follows:

l.—(l) In this Act,

(1) "member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning.

103.-(4) Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for such eligibility requirements.

79. When those two sections are read together they provide a complete code of what "membership" is to mean for the purposes of the Act. An employee is a member if he meets the terms of section 1(1)(l) whether or not he can be a member under the terms of the union's constitution. Even if he does not meet the provisions of section 1 (1)(l) and does not meet the eligibility requirements of a union's charter, constitution or bylaws, the Board may still find him to be a member for the purposes of the Act if the Board is satisfied that a trade union has an established practice of admitting such persons to membership without regard to the eligibility requirements of its constitution. Here, the occasionals not only meet the test of l(1)(l), not only are entitled to membership by the express terms of the OPS constitution, but also, as a matter of recent practice, have been admitted to membership whatever the constitution may provide. Metropolitan Life has no application.

Conclusion

80. This disposes of the respondent's challenges to the status of OPS and its right to represent elementary occasionals. Under ordinary circumstances we would turn to the description and composition of the bargaining unit, and whether (as appears to be the case) OPS has the support of the majority of the employees in the unit. However, it was recognized at the hearing that while the respondent's supply list of 80 or so teachers should all be on the list as employees in the bargaining unit there might have to be certain additional filings if the Board were disposed to apply here the approach to the composition of the bargaining unit outlined in York No. 2. (But there, of course, the list and selection system were neither so limited, formalized or mechanical as the one now before us.) In any event, since the focus has heretofor been on OPS rather than the unit, we consider it appropriate to extend the parties the opportunity to make any additional submissions respecting any remaining issues to be determined. Such submissions should be forwarded to the Board and each other within 21 days of the release hereof.