Ontario Public School Teachers' Federation v. The Board of Education for the City of Scarborough, 1987 CanLII 2997

[1987] OLRB Rep. January 119

0471-85-R Ontario Public School Teachers' Federation, Applicant, V. The Board of Education for the City of Scarborough, Respondent

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members F. W. Murray and D. Patter­son.

APPEARANCES: C. M. Mitchell and D. Lennox for the applicant; John W. Woon, C. R. Mason a~dR. A. Mitchell for the respondent.

DECISION OF THE BOARD; January 27, 1987

I

1. This is one of a number of certification applications in which various teacher organizations seek to represent "occasional teachers" employed by Ontario Boards of Education. Occa­sional teachers fill in on an "as needed" basis for regular classroom teachers who are absent for one reason or another. It is not disputed that these casual employees are excluded from The School Boards and Teachers Collective Negotiations Act, 1975 ("Bill 100"), and therefore, by default, fall within the ambit of the Labour Relations Act.

2. In this case the applicant has requested, and the Board has directed the taking of a pre-hearing representation vote. Pursuant to section 9(2) of the Act, the Board (differently constituted) directed that a representation vote be taken in the following voting constituency:

All occasional teachers employed by the respondent in its elementary panel, in the City of Scarborough, save and except employees in the bargaining units for which any trade union held bargaining rights on May 27, 1985.

The applicant asserts that this is also the description of the appropriate bargaining unit to be deter­mined by the Board under section 9(4). The respondent disagrees. The ballot box has been sealed pending a resolution of this outstanding dispute concerning the description and composition of the unit of employees appropriate for collective bargaining.

3. The respondent claims that the voting constituency set out above does not constitute an "appropriate bargaining unit". The respondent argues that the Board should describe the bargaining unit this way:

All teachers employed as occasional teachers by the respondent, in the City of Scarborough, save and except persons covered by subsisting collective agreements.

The respondent's position is that the bargaining unit should encompass all occasional teachers appearing on both the primary school and secondary school panels. Counsel contends that a composite unit is appropriate in this case because the two groups of employees share a community of interest and the more broadly based bargaining unit reduces the degree of fragmentation of the respondent's work force.

4. Although there is no precedent for the bargaining unit description that the respondent urges upon us, the argument itself is not novel. A similar argument was considered, at some length, in the first occasional teacher application to come before the Board: The Board of Education for the City of Toronto [1983] OLRB Reports Feb. 273. There, the request for a unit encom­passing all occasionals was made by the applicant, the Ontario Public Service Employees Union. In rejecting that proposition the Board commented, in part, as follows:

While similar considerations [concerns about fragmentation] provide considerable support for the applicant's contention that there should be a single bargaining unit for all of the respondent's occasional teachers, we are of the view that other relevant factors are present which make separate elementary and secondary panel bargaining units appropriate in the circumstances of this case. The historical dichotomy between elementary school teachers and secondary school teachers is reflected in the special legislation which governs collective negotiations between boards of education and "contract" teachers (i.e., the School Boards and Teachers Collective Negotiations Act). Their separate communities of interest also find expression in their distinct bar­gaining priorities, as reflected in the somewhat diverse provisions contained in the collective agreements between the respondents and the respective branch affiliates who represent the respondent's elementary and secondary panel (contract) teachers. The provisions of those agreements mirror some of the distinctions between second­ary schools, with their emphasis upon departmentalized, subject orientation with the concomitant emphasis upon positions of responsibility within the various depart­ments, and elementary schools with their disparate emphases as described by counsel for the respondent (and set forth earlier in this decision). Defining separate bargain­ing units for the respondent's elementary and secondary panel occasional teachers inconsistent with the Board's practice of describing bargaining units of part-time employees (who are somewhat analogous to the employees affected by this appli­cation) in a fashion which mirrors the description of their full-time counterparts. Although some of the respondent's occasional teachers are qualified to teach not only some grades at the elementary school level, but also some grades at the secondary school level, it appears that the actual interchange of occasional teachers between the two panels is quite limited, and could, in any event, be accommodated by appropriate collective agreement language within the context of separate bargaining units. More­over, the fact that the overwhelming majority of the respondent's occasional teachers are qualified to teach in only one of the two panels underlines the fact that the qualifi­cations required for teaching various subjects at the secondary school level differ from those required for teaching at the elementary school level (see regulations 262 and 269 (as amended) made under the Education Act).

5. This approach has been followed in all subsequent occasional teacher cases, so that there is now a well established bargaining unit pattern. There is no evidence whatsoever of any concrete collective bargaining problems arising from those Board determinations. So far as one can tell, bargaining units which "mirror" their Bill 100 counterparts appear to work, even though the Board, in other contexts would not define a bargaining unit in that way. Indeed, the Board was even prepared to define an occasional teacher bargaining unit in terms of the language of instruction - recognizing that English/French divisions had become part of the historical pattern of teacher collective bargaining which was recognized and given statutory force in Bill 100. The fact is, that we have only a minor and residual role in the education sector, and there are sound policy and col­lective bargaining reasons for "mirroring" the institutional arrangements which teacher organiza­tions and Boards of Education have developed over the years and which the Legislature clearly endorsed in Bill 100. Finally, as the Board pointed out in Hospital for Sick Children [1985] OLRB Rep. Feb. 266, the question of the bargaining unit definition really involves a relatively simple question: "Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer". (See also National Trust [1986] OLRB Rep. Feb. 250). From that perspective, we have no doubt whatsoever that the occasional teachers on the elementary school panel (as described more particularly in paragraph 2 above) constitute an appropriate bargaining unit. We so find.

II - Bargaining Unit Composition

6. A related and more difficult question concerns the composition of the bargaining unit and, in particular, the identification of those occasional teachers - necessarily employed on an intermittent basis - who should be treated as part of the bargaining unit for certification purposes. This is not an easy task, yet it obviously has a significant impact on the teachers' ability to organize 'themselves and establish a collective bargaining relationship. The broader the constituency of cas­ual workers whose views must be canvassed, the more difficult it will be to organize or demon­strate the requisite degree of membership support. The applicant asks, rhetorically: how can one organize teachers who are seldom there and whose employment and work opportunities are transi­tory, sporadic, and unpredictable? Why should occasionals who seldom teach at all, or who have not taught recently govern the outcome? The practical effect of an unduly broad definition is that the disinterest of teachers whom the union may not even be able to locate or identify, or who may not have worked recently, could frustrate the establishment of collective bargaining for those occa­sional teachers who have expressed an appetite for it. That was a dilemma which the Board consid­ered in Board of Education for the City of York [1985] OLRB Rep. May 767; however, before con­sidering that decision and its application in the instant case, it may be helpful to briefly sketch in the general statutory framework within which we must make our decision.

III - General Considerations

7. Section 9 of the Act requires the Board to ascertain the number of employees in the bar­gaining unit at the time the application is made; but there are no legislated criteria to guide the Board in this task. The determination as to whether a person is, or is not to be treated as an employee in the bargaining unit on the application date, is left to the Board to decide and, of course, there is really no difficulty in respect of those individuals who are actually working on the application date. The problem arises in the case of persons who might have some claim to employ­ment status for certification or collective bargaining purposes (whether or not they would be "em­ployees" at common law), but who were not actively at work on the application date, and may not even be scheduled to return to work for some time thereafter. Persons on sick leave, maternity leave, long term disability, workers compensation, or lay-off may fall into this category. So would casual workers employed on an irregular, contingent, or "as needed" basis by a firm whose employee needs fluctuate from day to day.

8. To cope with these practical problems, the Board has, over the years, developed a num­ber of "rules" or "standardized approaches" concerning the way in which it should go about its task of ascertaining the number of employees in the bargaining unit on the application date. For example, to distinguish between full-time and part-time employees (typically grouped in separate bargaining units) the Board usually looks to the individual's work record in the seven weeks imme­diately preceding the application date in order to determine an individual's status. (See Trenton Memorial Hospital [1980] OLRB Rep. Jan. 117). Similarly, in the construction industry, where employment is often transitory, so that workers are "here today and gone tomorrow", the Board has determined that the employee complement, for certification purposes, should consist only of those individuals actually working on the application date - fully realizing that this number may well be different the day before, or the day after. (See the discussion in Smiths Construction Company [1984] OLRB Rep. March 521). In most non-construction situations, the Board has been disposed to apply what has now come to be known, colloquially, as its "thirty/thirty - day rule". In order to meet the requirements of the thirty/thirty - day rule, an employee not actually at work on the application date must have worked at some time in the thirty day period immediately preceding the application date and work, or be expected to return to work at some time in the thirty day period immediately after the application date. The employees in the unit for certification purposes are those actually employed around the time the application is made. (See Board of Education for the City of York supra; Board of Education for the City of Toronto supra, and cases referred to therein, and more recently, Toronto General Hospital, [1986] OLRB Rep. Dec. 1855.

9. The Board recognizes, of course, that these are procedural constructs, but they are not, for that reason artificial. They have evolved from, and are based on, the Board's experience, over the years, in thousands of certification applications. They have been applied for many years, have wide acceptance in the labour relations community, and, without them or some similar "rules", the Board would be unable to process the hundreds and hundreds of certification applications which are disposed of each year. It would be drowned in a sea of litigation as parties "jockey with the list" in each case, - a result quite inconsistent with the Preamble to the Act, and the reality that "labour relations delayed are labour relations defeated and denied" (to borrow the phrase of Estey J.A., as he then was, in Jounal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild et.al. -unreported, March 31, 1977, Ontario Court of Appeal). [See also the remarks of Lasken J.A. in R. v. OLRB, ex parte Nick Masney Hotels Ltd. 1970 CanLII 478 (ON CA), [1970] 3 OR. 461] These "rules" are not "writ in stone" but they provide an important element of certainty and predictability.

10. The York case also dealt with "occasional teachers" but declined to apply the "thirty/thirty rule" - thereby departing from the decision of an earlier panel of the Board in somewhat similar circumstances (see Board of Education for the City of Toronto cited supra). In York the Board had before it what was acknowledged to be an anomaly: a bargaining unit which would necessarily consist solely of casual workers with only a tenuous attachment to the workplace and an equivocal claim to continuing employee status. That is a unit which, under ordinary circumstances, the Board would never consider to be appropriate and which arose only because this group of teachers was excluded from the collective bargaining legislation governing their professional peers. In York (as here) there was not just a fluctuating and often unpredictable complement of casual employees. There was no "core group" of regular employees either, and the occasional teachers could not even readily associate for collective bargaining purposes with the contract teachers they replaced, because these permanent teachers were covered by Bill 100. In this very special context the Board was moved (with some reluctance given the earlier City of Toronto decision) to depart from its usual approach based upon the thirty-thirty rule. The Board eventually decided that, for an occasional teacher bargaining unit, the employee list, for the purposes of "the count", should include all occasional teachers on the (secondary) panel maintained by the employer, who remained actively interested in the casual employment opportunities which might arise from time to time, and whose interest was confirmed by having worked, at least once, in the one year period preceding the application date.

11. Obviously, no approach adopted by the Board could ever achieve perfect decimal point democracy, or command the unqualified acceptance of partisans in particular cases; for, as we have already mentioned, the broader the bargaining unit constituency, the more difficult it will be to organize (particularly where the union has no right to know, in advance, who the employees are, and no protected right to organize on the employer's premises.) Any proposition which expands the scope of the bargaining unit beyond those employees actually at work on or around the appli­cation date, or renders the composition of the bargaining unit uncertain, will necessarily raise a barrier to the employees' right of self-organization. Conversely, the more narrow and certain the employee constituency, the easier it will be for them to identify their collective interests and estab­lish a majority for collective bargaining purposes. The "York Rule" was a compromise of these competing considerations - bearing in mind, we repeat, that the teachers appearing on the casual call-in list were probably only "employees" in the common law sense when actually employed, and that those who only worked sporadically did not have a very strong claim for consideration in a cer­tification application.

12. The particular problem raised in the instant case is not the York test, per Se, - although counsel for the union was sharply critical of the impact of that test on the union's ability to organize individuals who may not have been at work for months. He noted that, in contrast to the thirty/thirty rule, the York test was not very precise and did not, in practice, provide a "bright line test". He pointed out that, given the one year time frame, there was a real likelihood that there would be a number of individuals who had worked in the previous year and whose names appeared on the employer's list, who were no longer interested in casual employment, because they had moved, or had secured permanent jobs elsewhere but had not advised the employer of their change of status. That is especially so, he said, in Metropolitan Toronto where an occasional teacher may be registered with several Boards in an effort to improve his/her chances of a ~permanent teaching appointment (which also raises the oddity that, under the York test, it is argua­ble that an occasional teacher could be regarded as working for two employers in two different bar­gaining units at precisely the same time even though he was not actually working for either at the time the application is made).

13. However, the real focus of the union's argument concerned what was described as a dis­tortion or exception which should be taken into account even if the Board were disposed to stick with the York approach. Apparently, in the period immediately preceding the application for certi­fication, there was a "professional development" conference involving primary school teachers. Quite a number of the respondent's staff wished to attend, which created an unusual peak demand for occasionals to "fill in" over two half days. That demand could not be met (or the respondent did not choose to meet it) solely from those occasional teachers appearing on the elementary school panel. Instead, the respondent chose to call upon the services of occasional teachers appear­ing on (and qualified for) the secondary panel.

14. The employer asserts that all of these "secondary occasionals" should be treated as "employees" in the applicant's proposed bargaining unit. The practical result, of course, is a signif­icant enlargement of the "employee" constituency, within which the union must demonstrate the requisite level of membership support; moreover, that "bubble effect" would continue for some time into the future, even though this large "cross-over" from the secondary to the primary panel is admittedly a highly unusual event unlikely to be repeated very often. The union points out that the respondent itself requires that teachers to signify whether they wish to be on the primary or secondary panel and argues that it would be both absurd and grossly unfair if the collective bar­gaining rights of the primary occasionals depended upon the union's ability to solicit the member­ship support of individuals with such a tenuous attachment to the proposed bargaining unit - partic­ularly since, following the pattern of Bill 100, the secondary occasionals are typically represented for collective bargaining purposes by the Ontario Secondary School Teachers Federation. The union asserts that the respondent's position is simply an effort to defeat the certification appli­cation by inflating the list with the names of persons whom it knows have no real attachment to the primary occasional bargaining unit, and for that and institutional reasons, no real interest in repre­sentation by the applicant. (Primary and secondary school teachers have historically been repre­sented by different organizations, which under Bill 100 became their designated bargaining agents). It is, according to counsel, a form of "gerrymandering" which the Board should not accept.

15. Without commenting on the respondent's motive in this matter, we are inclined to agree with the position advanced by the applicant union. As we have already noted, the York rule was a compromise based on competing considerations in a novel situation. It stretched the meaning of "employment in the bargaining unit at the time the application was made" well beyond anything the Board had ever considered before, and probably beyond any test of current employment which a Court would apply. Be that as it may, we believe that it is incumbent upon the Board to give an interpretation to the Act (here section 9) consistent with practical collective bargaining realities and while that may require a degree of flexibility and innovation we do not think that we should lightly embrace an interpretation which yields an anomalous collective bargaining result or raises unwarranted barriers to the certification process. We find that those individuals ordinarily appear­ing on the secondary panel and available for work in the secondary schools are "not employees in the bargaining unit at the time the application was made" even though, in accordance with the York test, they may have occasionally worked in the primary schools in the year preceding the application date. Indeed, we would go further. We find that persons whose names are recorded on the secondary panel list, but not also recorded on the primary panel list should not be included in the bargaining unit, on a community of interest basis, even if they have occasionally moved from their usual employment sphere to work in the respondent's primary schools. That is the natural implication of bargaining unit descriptions framed with reference to the "primary" or "secondary" panel and it is reinforced not only by the Board's now well established practice, but also by the res­pondent's own conduct in requiring teachers to indicate on which panel they wish to appear. In summary, we find that teachers on the secondary panel, or part of the "bubble" are not employees in the bargaining unit at the time the application was made for the purposes of "a membership count", nor were they eligible to cast ballots in the representation vote directed to ascertain whether the primary occasionals wished to be represented by the applicant.

IV

16. A final question may still have to be determined, but we are not certain that it is necessary, or that we are able to do so on the basis of the material currently before us. This question concerns whether the respondent can alter (the respondent says "rectify") the employee list after a meeting with a Labour Relations Officer in which the list and the union's membership evidence were reviewed, and the officer expressed the opinion that, in his view, the union had established the requisite "appearance" of support to warrant a Board direction that a representation vote should be taken. It appears that the original list may have contained what the respondent regards as mechanical errors, arising from the sporadic nature of the occasionals' employment, the inade­quacy of its own records, and the difficulty of applying the York test to this contingent of casual workers. That submission is underlined, and perhaps supported, by the fact that certain other mod­ifications to the list had to be made as a result of union challenges which, upon investigation, turned out to be valid. The applicant contends that the employer cannot add to the employee list after the "membership count" (or, more accurately "appearance of support") has been revealed, even if there was a bona fide error.

17. It appears to the Board that this issue can, at most, effect a very small number of individuals and, that, having regard to the other Board determinations set out above, their inclusion on or exclusion from the list may not effect the ultimate result. For example, to the extent that the names "discovered" are on the secondary panel, they would not be included in the bargaining unit in any event for the reasons set out above. Unfortunately, the principle focus of the argument was the description of the bargaining unit and the inclusion or exclusion of those teachers nominally on the secondary panel. The parties did not clearly identify the names or number of those individuals alleged by the respondent to be properly in the unit, but omitted from the list alledgedly by mis­take, and a hearing where that might have been explored, was cancelled.

18. Accordingly, it is appropriate in our view to appoint Alex Vigar, a Labour Relations Officer, to meet with the parties, once again, to review the lists and the union's membership evidence in light of the determinations made in this decision. It may be that our disposition of the bar­gaining unit description and the issue of the secondary occasionals will, in fact, be dispositive. However, if there are any outstanding issues to be addressed, prior to the final disposition of this application pursuant to section 9(4), the parties may do so either in writing or at a hearing if they so request.