Ontario Catholic Occasional Teachers' Association v. Carleton Roman Catholic Separate School Board, 1987 CanLII 3005

[1987] OLRB Rep. January 18

0812-86-R Ontario Catholic Occasional Teachers' Association, Applicant, v. Carleton Roman Catholic Separate School Board, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members B. L. Armstrong and F. C. Bur­net.

APPEARANCES: Susan Ursel and Ray Fredette for the applicant; Cohn D. McKinnon, Brian Ward and Stephen Richardson for the respondent.

DECISION OF THE BOARD; January 29, 1987

1. This is an application for certification. The applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act ("the Act"). In accordance with the direction of a differently constituted panel of the Board in a decision dated August 26, 1986, a pre-hearing representation vote was conducted by secret ballot on October 1, 1986, and the ballot boxes were sealed pending resolution of the parties' dispute over the description of the appropriate bargaining unit. The apparent nature of that dispute was described in the following paragraphs of the Board's decision of August 26, 1986:

2. The applicant claims that the unit of employees of the respondent appropriate for collective bargaining in this matter would be described as follows:

All occasional teachers employed by the respondent in its schools in the Regional Municipality of Carleton save and except those employees teaching in schools pur­suant to Part XI of the Education Act and those employees in bargaining units for which any trade union holds bargaining rights as of the application date.

In its reply, the respondent describes the appropriate bargaining unit this way:

All qualified and unqualified occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton, save and except those employees teaching in schools pursuant to Part XI of the Education Act, those employees in bargaining units for which any trade union held bargaining rights as of June 19, 1986, being the date of application, including teachers with probationary or permanent teaching contracts with the respondent.

6. At the first glance, the parties' disagreement about the bargaining unit description concerns only the inclusion or exclusion of unqualified persons employed to perform the duties contemplated by the definition of occasional teacher in the Education Act. It appears, however, from the report of the Labour Relations Officer who met with representatives of the parties and from subsequent written representations filed with the Board by their counsel, that the respondent seeks the exclusion from any bargaining unit of occasional teachers of those of its employees who, in addition to their work as "occasional teachers" teach on a part-time basis pursuant to permanent or probationary teaching contracts. The applicant takes the position that such persons should fall within the appropriate unit of occasional teachers when they perform the work contemplated by the definition of "occasional teacher" in the Education Act. Counsel for the respondent describes the party's disagreement on this issue in the following way:

The application affects three identifiable groups:

(a) qualified occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton;

(b) unqualified occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton;

(c) qualified occasional teachers who are members of another union, namely, the Ontario English Catholic Teachers' Association.

The applicant seeks to include in its proposed unit all persons included in (a) and (c) above.

The respondent seeks to include in its proposed unit all persons included in (a) and (b) above.

2. We reiterate here the observations the Board made in the August 26, 1986, decision about the phrases "occasional teacher" and "unqualified occasional teacher":

3. The employment of "teachers" by school boards is governed by several statutes, including the

Education Act, R.S.O. 1980 c. 129, as amended. The term "occasional teacher" comes from the

Education Act, which insubsection 1(1) defines that term as follows:

31. "occasional teacher" means a teacher employed to teach as a substitute for a permanent, probationary or temporary teacher who has died during the school year or who is absent from his regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year;

[emphasis added]

Subsection 1(1) of the Education Act defines the word "teacher" as follows:

66. "teacher" means a person who holds a valid certificate of qualification or a letter of standing as a teacher in an elementary or a secondary school in Ontario;

As we understand the lexicon of school board employment relations, the word "qualified" means "having the qualifications described in clause 66 of subsection 1(1) of the Education Act." On that view, "occasional teachers" are, by definition, "qualified" and the phrase "unqualified occasional teacher" is, strictly speaking, a contradiction in terms. It appears from the material before us that the respondent intends the phrase "unqualified occasional teachers" to refer to unqualified persons employed on an emergency basis (pursuant to section 22 of Regu­lation 262, as amended) or pursuant to a letter of permission granted by the Minister of Educa­tion, whose duties involve "teaching as a substitute for a permanent, probationary or temporary teacher".

As the Board noted in the passage just quoted, the phrase "unqualified occasional teacher" is a contradiction in terms, since anyone who can be described as an "occasional teacher" is, by defini­tion, "qualified." It follows that it is redundant (and, therefore, unnecessary) to refer to any "oc­casional teacher" as "qualified." It is important not to lose sight of the fact that the word "teach­er" has a narrow and technical definition in the statutory framework imposed on the labour relations between school boards and those who might fall within a common or dictionary definition of "teacher." In order to maintain the necessary distinctions in what follows, unless we expressly indicate otherwise the word "teacher" will describe only those who fall within the definition of "teacher" in subsection 1(1) of the Education Act. A person who is not a "teacher" but is employed by the school board to "teach" in the ordinary sense will be referred to as an "instruc­tor." The phrase "occasional teacher" will be used to describe only those who fall within the defi­nition of that term in subsection 1(1) of the Education Act. A person who does not fall within that definition but is employed to teach as a substitute for a teacher or instructor for a temporary period will be referred to as a "supply instructor." Adopting that nomenclature, one of the two differ­ences between the parties with respect to the composition of an appropriate bargaining unit is whether supply instructors should be put in the same bargaining unit as occasional teachers.

3. A general theme of the Education Act and Regulations thereunder is that those who teach in schools must be "teachers" within the meaning of that Act. There are various limited exceptions to this general rule. By way of example, subsection 9(5) of Regulation 262 under the Education Act provides:

(5) A board may employ a person who is not a teacher to teach in a continuing education class a course that is not to be recognized for credit provided such person holds qualifications accept­able to the board for such employment.

(It is pursuant to this exception to the general rule that instructors dealt with in the Board of Education for the City of Toronto, [19861 OLRB Rep. June 900 and Metropolitan Separate School Board, [19861 OLRB Rep. Sept. 1259, could be employed to "teach.") The provision which per­mits the respondent to employ supply instructors to perform work which would ordinarily be per­formed by occasional teachers is found in subsection 22(1) of Regulation 262 as amended by 0. Reg. 617/81, section 18:

22.-(1) Subject to subsection (2), a board may, in the case of an emergency, appoint an unqualified person to teach for not more than ten school days in a school year without obtaining a Let­ter of Permission under section 49 of Regulation 269 of Revised Regulations of Ontario, 1980.

Under the section of Regulation 269 referred to in the provision just quoted, the Minister of Education cannot grant a Letter of Permission authorizing employment of an unqualified person unless the position for which that person is to be employed has been advertised extensively and the school board seeking the letter establishes that no teacher has both applied for and accepted the position in question. Generally speaking, there are more teachers currently seeking full-time positions that there are positions to be filled. Consequently, Letters of Permission are quite rare. The respondent had no more than one during the last full school year.

4. The School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c. 464 (often referred to, as it will be here, as "Bill 100") applies to labour relations between school boards and permanent and probationary teachers (as those terms are defined by the Education Act) who are employed by a school board "as a teacher" in the ordinary sense. The Labour Relations Act does not aply to teachers covered by Bill 100. Bill 100 assigns bargaining rights for such teachers to branches of the affiliates of the Ontario Teachers' Federation. In the case of teachers in separate schools (other than those teaching in schools pursuant to Part XI of the Education Act), the rele­vant affiliate is the Ontario English Catholic Teachers Association ("OECTA").

5. Bill 100 does not apply to occasional teachers, even though they are teachers in the technical sense who are employed "as a teacher" in the ordinary sense. As the Board noted in Board of Education for the City of York, [1985] OLRB Rep. May 767 at paragraph 5:

..Bill 100 does not apply to all teachers. Occasionals have been excluded, and, by default fall under the Labour Relations Act. It is not clear why they were omitted. There is no indication that the Legislature ever turned its mind to their situation.

8. It may well be (as the Matthews Commission suggests) that the Labour Relations Act is not suitable for the public education sector. But for occasionals, it is their only alternative. Although they are qualified teachers they are not included in the bargaining system which covers their professional peers. By default, they fall within the ambit of the Labour Relations Act. This creates something of an anomaly. It would be much simpler if one could say that all quali­fied teachers employed to teach are covered by the general legislation governing teacher collec­tive bargaining. But that is not the case....

Bill 100 also does not apply to instructors who, while they are not teachers in the technical sense, are employed "as a teacher" in the ordinary sense.

6. Like other school boards, the respondent is already party to several collective bargaining relationships. Under Bill 100, its permanent and probationary teachers are represented in collective bargaining by branch affiliates of the Ontario English Catholic Teachers' Association ("OECTA") and L'Association des Enseignants Franco - Ontariens. As a result of voluntary recognition, a local of the Canadian Union of Public Employees represents a unit of secretaries and office staff employed in the schools themselves. The Carleton Roman Catholic Separate School Board Employees' Association represents a unit of plant, maintenance and transportation employees and a separate unit of office and clerical employees limited (as a result of the earlier voluntary recognition of the CUPE local) to employees at its administrative offices. Employees not currently represented by a trade union in collective bargaining include teacher aides, paraprofessionals (that is: development assistants, developmental specialists, psychologists, psycho-educational consul­tants and social workers)~ lunch hour supervisors, occasional teachers and instructors. We use the last category to describe both supply instructors and any other employees who may be "teachers" in the ordinary sense without being a "teacher" within the definition of the Education Act. Some of the respondent's Heritage Language Instructors and Intinerant Music Instructors may fall within this category, as would anyone employed to teach pursuant to a Letter of Permission.

7. The respondent serves a large geographic area outside and surrounding the City of Ottawa. Each of its schools' principals maintains his or her own lists of persons who have indicated a willingness to serve as occasional teachers or supply instructors. The principal attempts to find an occasional teacher to substitute for temporarily absent regular teacher before turning to the list of supply instructors. Many teachers who have indicated a willingness to work as an occasional teacher for this school board have also placed their names on similar lists with the Carleton Board of Education and the school boards in the City of Ottawa. The respondent's experience is that such persons prefer teaching assignments with the city boards, when they are available. Accordingly, there are occasions, particularly in the winter months, when an occasional teacher cannot be found as a substitute for a temporarily absent regular teacher (particularly a teacher of French, Industrial Arts or Music) and the school principal must turn to his or her list of supply instructors to fill the temporary vacancy. The respondent's rough estimate is that twenty percent of those on its lists of persons available to substitute for teachers are supply instructors rather than occasional teachers, and that fifteen to twenty percent of the number of days worked by such substitutes are worked by supply teachers. The applicant suggests that the respondent's estimate of days worked by supply instructors is numerically impossible if the respondent is abiding by the ten day restriction in sub­section 22(1) of Regulation 262. On the view we take, nothing turns on whether supply instructors perform a smaller percentage of the substitutional teaching than the respondent claims.

8. Subject to the restrictions in the Regulations under the Education Act on the length of time they can remain employed, the work supply instructors do is similar in nature to work done by occasional teachers, in the sense that the temporary vacancy a supply instructor is engaged to fill would have been filled by an occasional teacher if one had been available. The respondent's occa­sional teachers and supply instructors are paid by the hour. The hourly rate paid to a supply instructor is somewhat less than that paid to an occasional teacher. The respondent put some emphasis on the fact that the Teachers' Superannuation Commission had recently advised it to make the same remissions to the Teachers' Superannuation Fund with respect to supply instructors as it always has for occasional teachers, apparently on the view that when supply instructors are employed under subsection 22(1) of Regulation 262 "the Ontario Government deems them to be qualified for up to 10 days." Counsel does not ask us to accept the Commission's legal conclusion. If he thought the argument was supportable, he would not have been concerned to have us say that "unqualified" persons must be included in the subject unit. The only significance for this case of that Commission's views is that they result in the respondent's making similar deductions and remissions for both groups of employees for the time being.

9. Of the teachers who have indicated to this respondent that they are available to work as occasional teachers, many wish to be employed full-time as permanent teachers but are not so employed or are only so employed on a part-time basis. Many of the teachers hired to fill permanent and probationary positions in the respondent's school system are teachers whose names previ­ously appeared on its list of teachers available to work as occasional teachers. Employment as an occasional teacher is seen as a route to part-time or full-time employment as a permanent or pro­bationary teacher - employment which would then be subject to collective bargaining under Bill 100 and not the Labour Relations Act. Supply instructors have no prospect of part-time or full-time teaching employment on a permanent basis, and the extent to which they can be so employed on a temporary basis is extremely limited.

10. Referring to the tests outlined in the often cited decisions in Usarco Limited, [1967] OLRB Rep. Sept. 526 and Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, counsel for the respondent says all of the factors listed in Usarco under the heading "community of interest" would favour joining occasional teachers and supply instructors in one bargaining unit. Counsel for the applicant argues that the community of interest of occasional teachers is very sub­stantially different from that of supply instructors, because of the very significant legislative and regulatory restrictions on the employment of unqualified persons in a teaching capacity.

11. The respondent made reference to the collective bargaining relationships which the Carleton Board of Education (which operates the public school system in the same geographic area as the respondent) has with the Ontario Secondary School Teachers' Federation ("OSSTF" -which represents occasional teachers in that board's secondary schools) and the Ontario Public School Teachers' Federation ("OPSTF" - which represents occasional teachers employed by the board in its elementary panel). The respondent suggested that supply instructors were included in the unit for which OPSTF was certified. This was based on a belief by the respondent that the names of such persons appeared on voters' lists prepared for the representation vote held in con­nection with OPSTF's application for certification. If the parties to those proceedings included on the voters' lists names of persons who did not have the qualifications of an occasional teacher, from our review of the Board's file in that proceeding it does not appear that the Board was or could have been aware of it. It is clear from the Board's decisions in that matter that the bargaining unit it had in mind was limited to occasional teachers.

12. Counsel also draws our attention to the language of Article 13.07 of what he understands to be the current collective agreement between the Carleton Board of Education and OSSTF, which reads:

13.07 Casual occasional teachers who do not have an Ontario Teaching Certificate or its equivalent shall be paid for each day of employment at the rate of 75% of the rate as established in Article 13.06 above.

By this language, counsel argued, the parties to that collective agreement have agreed that the phrase "occasional teacher" can be used to describe unqualified persons. It is noteworthy, however, that the collective agreement in question contains a definition of occasional teacher in Article 3.02, which reads:

3.02 An Occasional Teacher is as defined by the Education Act.

Read together, these two articles reveal a certain unclarity of thought on the part of those who drafted and adopted that collective agreement. It is not apparent whether the parties to that agreement intended to extend the union's bargaining rights beyond the occasional teachers for which it was certified to include supply instructors, or merely to place limits on the terms on which employ­ees outside the unit could be employed to perform bargaining unit work.

13. The experience of Mr. Fredette, the applicant's organizer, was put before us. At the time the parties' evidence and argument on these issues were received, the applicant had been certified to represent 11 units of occasional teachers and had concluded collective agreements cover­ing 4 of those units. The argument that supply instructors should be included in the unit was only raised at the certification stage in one case: Windsor Roman Catholic Separate School Board, infra, in which the argument was rejected without being specifically referred to in the Board's written decision. The question of the treatment of supply instructors arose during the negotiations of one of the four concluded collective agreements. In that case, the union was asked whether union dues should be deducted from the amounts paid to supply instructors; the union said yes. The union's position, however, is that supply instructors are not part of the bargaining unit covered by that col­lective agreement.

14. In matters involving the employment of persons to perform a teaching function, the leg­islature has chosen to make statutorily defined qualifications determinative not only of the work which those persons may perform but also of the collective bargaining regime by which their employment may be governed. The legislature thought it important that collective bargaining for teachers be governed by legislation quite different from the Labour Relations Act. It is not appar­ent why teachers whose employment is 'casual' were excluded from the collective bargaining regime governing teachers whose employment is 'permanent.' Except in a narrow range of employ­ment situations (seasonal employment in the tobacco and canning industries) the characteristics of which are not shared by occasional teacher employment, this Board has consistently rejected the notion that "casual" workers should be excluded from units of "permanent" workers: Board of Education for the Borough of Scarborough, [19801 OLRB Rep. Dec. 1713; Board of Governors of Ryerson Polytechnical institute, (1984] OLRB Rep. Feb. 371. The fact remains, however, that occasional teachers are not covered by Bill 100, and collective bargaining for them falls, by default, under the Labour Relations Act.

15. The application to occasional teachers of the Labour Relations Act and of the Board's jurisprudence has been influenced by the "casual" nature of their employment and their very strong affinity with their professional colleagues in Bill 100 units. The Board commented on this in Metropolitan Separate School Board, supra, at paragraph 25:

16. The first occasion on which this Board had to consider the applicability of its general practices, procedures and doctrines to a certification application affecting occasional teachers was in The Board of Education for the City of Toronto, [1983] OLRB Rep. Mar. 466. One of the issues in that case was whether the Board would apply its "30-30" rule to determine which persons were "employed" in the occasional teacher bargaining unit at relevant times. It concluded it would. The Board rejected that conclusion and adopted a special test for occasional teachers in Board of Education for the City of York, [1985] OLRB Rep. May 767, which was the next decision to address that question. As will be apparent from that decision and from the passage quoted earlier from Board of Education for the Borough of Scarborough, supra, occasional teachers are not a group which would have been excluded from a unit of certified teachers if it had fallen to this Board to define such a unit in accordance with the principles it has developed over the years. This observation is not made as part of a critique of Bill 100, but simply to high­light a fact peculiar to the "education industry", the ramifications of which have led the Board to adopt a different approach to matters involving occasional teachers. In the same vein, it is noteworthy that the Board's approach to appropriate composition of occasional teacher bargain­ing units has been so influenced by the peculiarities of Bill 100 as to have results which would not occur in another industry - such as the definition of units in terms of the language in which employees work, for example: see, Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090.

Since its decision in the Board of Education for the City of Toronto, [1983] OLRB Rep. March 466, the Board has dealt with dozens of applications for certification for units consisting solely of occa­sional teachers. It has consistently found such units to be appropriate for collective bargaining. The reasons for this were briefly stated in the Board's decision in Windsor Roman Catholic Separate School Board, [1986] OLRB Rep. July 1028 at paragraph 6:

It has been the Board's experience that until relatively recently school boards and unions that represent their non-teacher employees have not thought of occasional teachers as employees who might be the subject of or affected by collective bargaining under the Labour Relations Act. When they have been the subject of trade union organizing, they have been organized separately from other employee groups. Because of their affinity with "Bill 100" teachers, the Board has placed them in separate bargaining units -- if effect, "tag ends" to Bill 100 units

16. Certification applications with respect to instructors are even more recent phenomena than applications with respect to occasional teachers. Composition of units of instructors has been addressed in two decisions: The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900; and, Metropolitan Separate School Board, supra. In both cases, units of the respondents' occasional teachers had been the subject of certification before applications were brought with respect to instructors. Although those decisions did not speak directly to the situation of instructors who substitute for Bill 100 teachers, such persons were included with all other instructors in the unit established in Metropolitan Separate School Board. All instructors fall within the Labour Relations Act, and it would be inconsistent with this Board's jurisprudence to separate supply instructors from other instructors in composing bargaining units.

17. The immediate question here is not whether one unit consisting of occasional teachers and supply instructors (or occasional teachers and instructors) would be appropriate. The question is whether a unit consisting solely of occasional teachers would be appropriate. Although basic terms and conditions of employment of occasional teachers and supply instructors are similar, their employment aspirations and potential for longer term attachment to the workplace are very differ­ent, because of the distinctions made by the Education Act and Regulations thereunder. The impact of those distinctions on the employment relationships and the aspirations of the groups con­cerned supports a conclusion that each group has a different and distinct community of interest. Added to that consideration is the consideration articulated by the Board in The Carleton Board of Education, Board File No. 0534-85-R, dated July 16, 1985, unreported, with respect to a somewhat different issue:

In structuring its organizing campaign, the applicant ... was entitled to take into consideration the Board's decisions in the Board of Education for the City of Toronto and in other cases involving occasional teachers, in determining who it should seek to organize. Since members of the labour relations community do take such decisions into account in ordering their affairs, the Board should not likely adopt an inconsistent approach in relation to such matters.

The Board's uniform practice since its decision in Board of Education for the City of Toronto, [1983] OLRB Rep. Mar. 466, has been to treat occasional teachers as constituting an appropriate bargaining unit by themselves. This applicant has relied on that practice, and we see no reason in this case to depart from that practice. The fact that parties to another collective bargaining relationship may have agreed that supply instructors ought to be included with occasional teachers in a bargaining unit is an insufficient basis on which to depart from that past practice. If it were shown that the addition of supply instructors to units of occasional teachers by voluntary recognition had become a regular practice in the education sector, a reappraisal of this practice might be war­ranted.

18. Accordingly, the bargaining unit in this application will include only occasional teachers as that term is defined by the Education Act. In rejecting the argument that supply instructors should be included in this unit, we should not be taken as suggesting that they would form an appropriate bargaining unit by themselves, nor does our decision mean (as the respondent's man­agement apparently feared) that it can no longer employ supply instructors in circumstances in which it would otherwise be lawful to do so.

19. The customary description of an occasional teacher bargaining unit expressly excludes "employees in bargaining units for which any trade union held bargaining rights as of [the application date.]" That language was originally adopted to satisfy concerns that school boards had about making distinctions between occasional teachers and teachers covered by Bill 100. Strictly speaking, this exclusionary language is unnecessary for that purpose, since "occasional teachers" are not "teachers" as that term is currently defined in Bill 100. It is important to remember, however, that that exclusion (whether by express language or by operation of Bill 100 and subparagraph 2(f) of the Labour Relations Act) only applies to a teacher in respect of employment which falls within the scope of Bill 100. In respect of employment to teach as a substitute for a perman­ent, probationary or temporary teacher in the circumstances described in clause 1(1)31 of the Education Act, a teacher is an occasional teacher and falls within the customary occasional teacher bargaining unit description even if, during other hours of the week, he or she is engaged by the same school board in employment which falls within the scope of Bill 100.

20. The respondent employs some teachers under part-time permanent or probationary teacher contracts. When performing the duties contemplated by those contracts, those teachers fall within Bill 100 and are covered by the agreements negotiated with OECTA and AEFO. A number of those part-time "contract" teachers have indicated a willingness to perform, and from time to time do perform, occasional teacher assignments. They do not fall within Bill 100 with respect to that additional employment; they are "occasional teachers" within the meaning of the Education Act when they perform that work. In respect of that work, they would be governed by the terms of any collective agreement negotiated to cover a bargaining unit framed in the usual terms.

21. The respondent argued that a teacher covered by Bill 100 and obliged to a member of OECTA will be placed in a conflict of interest situation if he or she is subject to a collective agree­ment governing his or her performance of occasional teacher assignments. Counsel for the respon­dent said occasional teachers may be called upon to replace permanent teachers when the latter engage in a legal strike under Bill 100. He raised the spectre of an OECTA member being obliged to cross a picket line of his or her fellow members in order to perform such an occasional teacher assignment. This is an intriguing hypothetical situation, and is another reason to wonder why the legislature excluded occasional teachers from Bill 100. They are excluded, however. If the respon­dent's concern is that this hypothetical teacher might be inclined to join in a concerted refusal to perform an occasional teacher assignment to which he or she is otherwise legally committed, it is hard to see how excluding individuals of that sort from a bargaining unit of occasional teachers would change the result, either pragmatically or legally. Pragmatically, it is not membership in the bargaining unit of occasional teachers which is likely to determine whether this hypothetical indi­vidual crosses or refuses to cross the picket line. Legally, if he or she has an obligation to work as an occasional teacher, the prohibition in the Labour Relations Act against concerted refusals to work will apply to him or her equally whether he or she is excluded from the occasional teacher bargaining unit or not, with this one exception: if included in the occasional teacher bargaining unit, this hypothetical individual has at least some prospect that the timing of the collective bar­gaining process in the occasional teacher unit can be arranged to coincide with that of the corre­sponding unit of Bill 100 teachers, so that strikes in both units are lawful at the same time.

22. The perspective that we would be doing employees a favour by excluding them from collective bargaining altogether in respect of certain employment is not one which the Board is ordinarily inclined to adopt, and we are not persuaded to adopt it here. In respect of their employment as occasional teachers, those employed by the respondent in other capacities at other times should enjoy the same access to collective bargaining and form part of the same bargaining unit as those who do not have any other employment with the respondent.

23. On November 26, 1986, we ruled orally that the bargaining unit appropriate for collective bargaining in this application is described as follows:

all occasional teachers employed by the respondent in its schools in the Regional Municipality of Ottawa-Carleton, save and except those employees teaching in schools pursuant to Part XI of the Education Act, and employees in any bargaining unit for which a trade union held bargain­ing rights as of June 19,1986.

For the purpose of clarity, the term "occasional teacher" in this description of the voting consti­tuency has the meaning assigned to it by clause 1(1) ¶31 of the Education Act, R.5.O. 1980 a. 129, as amended.

As that was the voting constituency in which the pre-hearing representation vote had been conducted, we directed that the ballot box be unsealed and the ballots counted. The ballots have since been counted. Notice of the report of the Returning Officer on the counting of the ballots was given in accordance with the Board's Rules of Procedure, and no statement of desire to make rep­resentations has been filed by any interested person within the time fixed under subsection 3 of section 70 of the Board's Rules of Procedure.

24. The Board is satisfied that not less than thirty-five percent of the employees of the res­pondent in the bargaining unit were members of the applicant at the time the application was made.

25. On the taking of the pre-hearing representation vote, more than fifty percent of the bal­lots cast were cast in favour of the applicant.

26. A certificate will issue to the applicant.

27. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision, unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.