Ontario Secondary School Teachers' Federation v. Wellington County Board of Education, 1987 CanLII 3077

Ontario Secondary School Teachers' Federation v. Wellington County Board of Education

[1987] OLRB Rep. August 1114

0736-87-R Ontario Secondary School Teachers' Federation, Applicant v. Wellington County Board of Education, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.

DECISION OF THE BOARD; July 23, 1987

Decision

1This is an application for certification under the Labour Relations Act R.S.O. 1980, c. 228, as amended ("the Act") with respect to a unit of occasional teachers. It was filed June 11, 1987. Before entering into a hearing of the application on the merits, we raised with representatives of the applicant and respondent our concern (arising out of our experience with the nature of occasional teacher employment) about whether several days' posting in schools of the Form 6 Notice to Employees was adequate notice of this application to the employees affected by it. We noted the Board's routine practice in occasional teacher applications involving pre-hearing representation votes of ensuring that all occasional teachers eligible to vote are given mailed notice of the vote and of the opportunity of a hearing on the merits before any of the issues described in subsection 9(4) of the Act is determined. We invited the applicant and respondent to consider and respond to our concern whether the affected employees had adequate notice of this application and, if not, to give us their submissions as to how adequate notice should be given.

2After considering the matter, the applicant indicated it wished to amend its application to request that a pre-hearing vote be conducted. The respondent indicated that it consented to the amendment. No other interested party having opposed the request, the application is so amended. On consent of the parties, their meeting thereafter with a Labour Relations Officer and the officer's report thereon shall serve in place of the meeting and report ordinarily directed after a pre-hearing vote application is filed.

3The parties agree that the appropriate bargaining unit, and hence the voting constituency for the purpose of any pre-hearing representation vote, should be described as follows:

all occasional teachers employed by the respondent in its secondary panel in Wellington County, save and except employees in bargaining units for which any trade union held bargaining rights as of June 11, 1987.

While we do not determine the proper description of the appropriate bargaining unit at this stage, we do note the observations of the Board in The Board of Education for the City of Hamilton, [1987] OLRB Rep. June 847 at paragraphs 11 and 12:

11. ... While the parties have agreed that the bargaining unit description should include the words "save and except employees in bargaining units for which any trade union held bargaining rights as of May 19, 1987" (the application date), the panel which ultimately disposes of that issue may wish to consider the propriety of including those words. It is true that, to date, such words have almost invariably been included in the description of occasional teacher bargaining units, as the Board noted in Carleton Roman Catholic Separate School Board, [1987] OLRB Rep. Jan. 18 at paragraph 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.

The Board went on in that paragraph to note that:

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)(3) 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.

Having regard to the way in which the issues developed in that particular case, it may that the addition of the words in question is not only unnecessary but also potentially misleading to those who may not understand the point made in the latter half of the paragraph just quoted. Because of this possibility of misunderstanding, the Board may wish to reconsider its current practice.

12. There is no suggestion that occasional teachers employed as such by the respondent fell within any bargaining unit for which a trade union held bargaining rights as of the date of this application. If any of the parties wishes the Board to include the words "save and except employees in bargaining units for which any trade union held bargaining rights as of May 19, 1987" in the final bargaining unit description, they should include their representations in support of that request in the statement of desire they file after receiving notice of the Returning Officer's report on the conduct of the vote. If no such representations are received by the Board, it will be assumed that this request has been abandoned by the parties.

We adopt these observations and add that any representations on this subject should indicate whether the party making them is of the view that any occasional teacher as such fell within a bargaining unit for which a trade union held bargaining rights on the application date. As the question whether the proposed exclusionary language should be used in bargaining unit descriptions remains unsettled, we will retain it for the purpose of defining the voting constituency. The meaning we attach to those words, however, is as indicated in the passage quoted earlier. Accordingly, we determine that the voting constituency for the purpose of any pre-hearing representation vote in this matter shall be:

all occasional teachers employed by the respondent in its secondary panel in Wellington County, save and except employees in bargaining units for which any trade union held bargaining rights as of June 11, 1987.

In this context, the phrase "occasional teacher" has the meaning assigned to it by clause 1(1) ¶31 of the Education Act, R.S.O. 1980, C.129, as amended.

4Upon an examination of the records of the applicant and the respondent, it appears to the Board that not less than thirty-five percent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made. The Board therefore directs that a pre-hearing representation vote be taken of the employees of the respondent in the voting constituency described above.

5All employees of the respondent in the voting constituency on June 25, 1987, who are employees in the voting constituency on the date of the vote will be eligible to vote. (With respect to the question of who may be an "employee in the voting constituency" in the context of an application involving occasional teachers, see Board of Education for the City of York, [1985] OLRB Rep. May 767; The Board of Education for the City of Scarborough, [1987] OLRB Rep. Jan. 119; and The Board of Education for the City of Hamilton, supra.) Voters will be asked whether they wish to be represented by the applicant in their employment relations with the respondent.

6In accordance with the Board's current practice, the vote will be conducted by poll, but notice to employees of the taking of the vote will be given both by postings in the respondent's schools and by mail to the persons named on the voters' lists prepared by the parties. The respondent shall provide the Board with two sets of mailing labels (one for the notice of taking of vote and one for the subsequent notice of Returning Officer's report) containing the names and last addresses known to the respondent of all of the persons on the voters' lists. The applicant may also (but is not required to) supply two sets of mailing labels with respect to any or all of the persons on the voters' list. If the addresses on the applicant's and respondent's labels for any person differ, notices will be sent to both addresses. The parties have agreed to a vote date in late September or early October 1987. Mailing labels for the purpose of notice to employees are to be supplied by August 14, 1987. Notices are to be mailed to employees no earlier than the first week of September 1987.

7The officer's report records that the applicant takes the position that it ought to also receive a set of mailing labels for persons on the voters list. The applicant is entitled to the names and addresses: York Board of Education, [1985] OLRB Rep. May 767; Scarborough Board of Education, [1986] OLRB Rep. Mar 361. The submission that these ought to be supplied to the union in the form of address labels is novel. We direct that the respondent shall provide the applicant with the names and addresses of the persons on the mailing list, either in the form of mailing labels or in the form of photocopies of the labels submitted to the Board or in whatever other form is most convenient to the respondent, by August 14, 1987.

8The respondent takes the position that this application should not be entertained by the Board because the applicant filed a previous application within the last two months for the same bargaining unit, and this previous application was withdrawn after the applicant reviewed the list. The respondent requests that the ballot box be sealed at the conclusion of this vote in order for it to have opportunity to make its representations in this respect at a later hearing before the Board. While the circumstances recited have not ordinarily resulted in the Board exercising its discretion under clause 103(2)(i) of the Act to refuse to entertain a subsequent application, that decision is not made at this stage. Unless in the meantime the respondent abandons its submission that this application should not be entertained, the ballot box shall be sealed and the ballots cast shall not be counted until further order of the Board.

9The matter is referred to the Registrar.