Ontario Public School Teachers' Federation v. Board of Education for the City of London

[1987] OLRB Rep. February 235

0701-85-R Ontario Public School Teachers' Federation, Applicant, v. Board of Education for the City of London, Respondent, v. Federation of Women Teachers' Association of Ontario, Intervener

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members R. M. Sloan and P. V. Grasso.

APPEARANCES: Duncan A. Jewell, John D. Stevens and Win. F. Getty for the applicant; Peter J. Thorup, Peter Gryseels and Raymond J. Gladwell for the respondent; Elizabeth Lennon and Joan Byrne for the intervener.

DECISION OF THE BOARD; February 11, 1987

1. The Federation of Women Teachers' Association of Ontario is hereby added as a party to these proceedings.

2. This is an application for certification in which the hearing on December 23, 1986, was for the purpose of receiving the representations of the parties with respect to the issue raised by the respondent in its letter dated September 10, 1986, and the applicant's response of September 11, 1986. That is, while the parties had agreed on the bargaining unit definition as "all occasional teachers employed by the respondent in its elementary panel, save and except persons covered by subsisting collective agreements", the respondent had taken the position that there were no employees in the proposed bargaining unit as all occasional teachers in the respondent's element­ary panel were covered by the subsisting collective agreement in respect of all teachers in the res­pondent's elementary panel. The Board notes that the decision of the Board (differently constitut­ed) dated August 23, 1985, directing a pre-hearing representation vote utilized the phraseology in describing the bargaining unit of ". . .save and except employees in bargaining units for which any trade union held bargaining rights as of June 20, 1985, being the date of application". The differ­ence in wording does not alter the parties' arguments on the matter.

3. By agreement, the parties proceeded to submissions on the basis that the Board deter­mine the issue from the documentation filed, including the relevant collective agreement and the personnel manual for teachers in the respondent's elementary panel. For clarity, it should be noted at the collective agreement just referred to is between the respondent and those teachers covered I y what is colloquially known as "Bill 100". Thus, the term "teachers" refers to "Bill 100 teach­ers", while those persons who are the subject of this certification application are always referred to s "occasional teachers".

4. The respondent asserted that occasional teachers were already covered by the subsisting collective agreement. That is, certain terms and conditions relating to occasional teachers are found in article 11 of the personnel manual which document is itself incorporated into the collec­tive agreement between the respondent and teachers represented by various "branch affiliates", including the applicant (herein referred to as the "collective agreement"). In particular, counsel noted that alleged violations of the personnel manual are grievable pursuant to article 15 of the collective agreement and article 16 deals with the procedure for revisions to the personnel manual. Counsel acknowledged that the term "teacher" in the collective agreement and the personnel man­ual referred to teachers within the statutory definition of the term and, thus, did not include occa­sional teachers. However, counsel contended that the relevant legislation did not preclude the par­ties' agreement to broaden their scope clause. Counsel submitted that the effect of article 11 in the personnel manual directly dealing with occasional teachers and the various references to that docu­ment in the collective agreement was tantamount to voluntary recognition that the branch affiliates represented occasional teachers and those occasional teachers were covered by a subsisting collec­tive agreement. In support, counsel referred to Memorial Hospital, Bowmanville, [1975] OLRB Rep. Apr. 391. Finally, counsel contended that there could not be provisions in two collective agreements covering the same group of employees and, in the alternative, if the occasional teach­ers were not found to be represented by the branch affiliates and the applicant certified, the Board should render article 11 of the personnel manual null and void.

5. Counsel for the intervener asserted that the legislation covering teachers' collective bar­gaining, Bill 100, did not permit voluntary recognition and, hence, if a trade union had acquired bargaining rights for occasional teachers, those rights must have been acquired pursuant to the Labour Relations Act and article 11 of the personnel manual would have to constitute the volun­tary recognition document and the complete collective agreement for occasional teachers. In this regard, it was argued that article 11 was defective, at the very least, in that the trade union could not be identified from amongst the three possible branch affiliates, i.e. the intervener (FWTAO), the applicant (OPSTF), and L'Association des Enseignants Franco-Ontariens (AEFO). Further, counsel contended that the Board had no jurisdiction to declare article 11 of the personnel manual null and void because there might be a conflict between provisions of two collective agreements, if the applicant was certified and a collective agreement covering occasional teachers concluded. In the alternative, if the Board possessed such jurisdiction, it was submitted there was no basis to declare article 11 null and void in the instant case.

6. The applicant's representative submitted that occasional teachers were not covered by the collective agreement between the teachers represented by the branch affiliates and the respon­dent in respect of the respondent's elementary panel because the relevant teachers' legislation did not apply to occasional teachers and the collective agreement was negotiated within that statutory scheme. It was stressed that article 1 of the collective agreement expressly stated the parties were the respondent and teachers employed by the respondent who are statutory members of the branch affiliates and this restricted use of the term "teacher" continued throughout the collective agree­ment. The representative of the applicant concurred with intervener's counsel that article 11 of the personnel manual could not be regarded as a document conferring voluntary recognition and a col­lective agreement given the non-conformity of article 11 to a collective agreement within the mean­ing of the Labour Relations Act. The absence in article 11 of a recognition clause and arbitration provision, for example, was noted.

7. It is useful at this juncture to quote the following passage from The Board of Education for the City of Windsor, 11986] OLRB Rep. Mar. 378 which sets out the context of certification applications in respect of occasional teachers:

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(0 of the Labour Relations Act [see section 230 of the Education Act, R.5.O. 1980, c.129, and section 1(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 3. 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, (McClelland 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 School 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.-(1) 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 lock-out 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.-(1) 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).

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 (oEC'rA), 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 OEC1'A.

13. 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.

14. With this background, the Board turns to the respondent's assertion that the occasional teachers were already covered by a subsisting collective agreement, namely, article 11 of the per­s4nnel manual, as a result of voluntary recognition. The Board does not agree with this proposition. It is clear that the collective agreement between the respondent and the teachers represented by the branch affiliates is solely concerned with teachers who are statutory members of the various branch affiliates. Indeed, the respondent acknowledged that the term "teacher" used throughout tl4e collective agreement and the personnel manual did not include "occasional teachers". That the collective agreement incorporates another document, in this case, the personnel manual, as a s₉urce of further terms and conditions of employment is not unusual. What the respondent is seek­ing, however, is a reaching into the collective agreement "proper", as it were, to supplement arti­cle ii in the personnel manual, the sole provision dealing with occasional teachers, to flesh out a document which could be regarded as a collective agreement in respect of those occasionals. In the Board's view, this torturous process strains the collective agreement and the personnel manual beyond any reasonable interpretation.

15. Moreover, it is evident from the legislative background referred to in the passage cited

that the parties (and the legislature) did not intend the collective agreements covering "teachers" to extend to occasionals. As occasional teachers fall under the Labour Relations Act, it is possible for a bargaining agent to be granted voluntary recognition on their behalf. However, that requires that recognition be granted by an employer to an identifiable bargaining agent at a specific point in time because the Labour Relations Act attaches important rights to the various parties involved, including employees. In this case, those elements of specificity are absent. On the face of article 11 of the personnel manual, even in the context of the entire collective agreement, one cannot iden­tify the "trade union" which has been accorded voluntary recognition in respect of occasional teachers. The three branch affiliates (FWTAO, OPSTF and AEFO) are separate bodies and can­not be regarded as a "council of trade unions" within the meaning of section 1(1)(g) of the Act. Article 1 of the collective agreement which sets out the parties to that agreement is written in terms which expressly excludes occasional teachers. In short, the documents cannot constitute a collec­tive agreement for occasional teachers as a result of voluntary recognition. To hold otherwise would result in a situation wherein the branch affiliates collectively acquired rights at some undet­ermined time in the past to represent various groups of occasional teachers through voluntary rec­ognition granted by the employer without any of the parties being aware that voluntary recognition had been granted or a collective agreement negotiated. Further, this would cause fragmentation of the occasional teachers amongst the three branch affiliates, a result which would not be sanctioned by the Board in a certification application concerning occasionals: The Board of Education for the City of Windsor, supra, and the cases cited therein; Windsor Roman Catholic Separate School Board, 11986] OLRB Rep. July 1028. Such an outcome does not make sense in historical or labour relations terms. Finally, it must be noted that the Board makes no comment, as the matter was not raised nor is a finding necessary in this case, as to the trade union status within the meaning of the Labour Relations Act, of the branch affiliates, except as may have already been determined by the Board in other cases.

10. Thus, the Board finds that the occasional teachers were not in bargaining units for which any trade union held bargaining rights at the date of application for certification and, there­fore, fall within the bargaining unit otherwise agreed to by the parties.

11. The results of the pre-hearing representation vote were that 164 ballots of the 189 cast were cast in favour of the applicant. Other than the respondent's argument just dealt with, there were no objections. No statement of desire to make representations has been filed with the Board within the time fixed under subsection 2 of section 70 of the Board's Rules of Procedure following the taking of the pre-hearing representation vote pursuant to the Board's direction of August 23, 1986.

12. Accordingly, the applicant is entitled to certification in respect of the following bargain­ing unit, which the Board finds to be appropriate:

all occasional teachers employed by the respondent in its elementary panel, save and except persons in bargaining units for which any trade union held bargaining rights as of June 20, 1985, being the date of application.

13. The respondent asked the Board, in the alternative, to declare article 11 of the person­nel manual null and void. Even assuming the Board has the jurisdiction to do so, the Board sees no basis for such a declaration in the instant case on the ground that there is a potential for conflict between an existing collective agreement and a collective agreement which has yet to be negotiat­ed.

14. A formal certificate shall issue to the applicant.