Ontario Secondary School Teachers' Federation v. The Sault Ste. Marie Board of Education, 1987 CanLII 3134

Ontario Secondary School Teachers' Federation v. The Sault Ste. Marie Board of Education

Citation: [1987] OLRB Rep. November 1425 File Nos.: 0700-87-R; 0731-87-R; 0736-87-R

Ontario Secondary School Teachers' Federation, Applicant v. The Sault Ste. Marie Board of Education, Respondent; Ontario Secondary School Teachers' Federation, Applicant v. North York Board of Education, Respondent; Ontario Secondary School Teachers' Federation, Applicant v. Wellington County Board of Education, Respondent

Before: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and J. Redshaw.

Decision of the Board: November 20, 1987

Decision

1These are three certification applications affecting occasional teachers in the respondents' secondary panels. Pre-hearing representation votes have been conducted in each application, as directed by earlier decisions ("the pre-vote decisions") dated July 16, 1987 (in Board file No. 0731-87-R, "the North York application") and July 23, 1987 (in Board Files 0700-87-R, 'the Sault Ste. Marie application", and 0736-87-R, "the Wellington application"). Notice of the report of Returning Officer has been given in each case. Written submissions have been filed by he applicant and each of the respondents and by an employee affected by the North York application. None of those submissions contains a request that a hearing be conducted. Accordingly, the )outstanding issues in each application will be disposed of without a hearing pursuant to subsection 70(5) of the Board's Rules of Procedure. Our decisions in these applications are consolidated because they share a common issue: how to describe the bargaining unit.

2We find that the applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act.

3In each of these applications, the applicant and respondent were initially in agreement 1 hat the appropriate bargaining unit, and hence the voting constituency for the purpose of any prehearing representation vote, should be described as follows:

all occasional teachers employed by the respondent in its secondary panel in [geographic area], save and except employees in bargaining units for which any trade union held bargaining rights as of [the application date].

While observing that the proper description of the appropriate bargaining unit was not a matter to lie decided at that stage, in each of the pre-vote decisions in these applications the Board noted the observations 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)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.

Having regard to the way in which the issues developed in that particular case, it may be 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.

Each of the pre-vote decisions adopted these observations and added that any post-vote represent­ations on this subject should indicate whether the party making them was 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. The respondents (who are all represented by the same counsel) and the applicant have addressed this issue in their post-vote representations. Before addressing those representations, we should set out the relevant statutory definitions.

4Subsection 1(1) of The Education Act, R.S.O. 1980, c.129, as amended, provides that:

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;

32. "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;

33. "permanent teacher" means a teacher employed by a board under a permanent teach­er's contract made in accordance with the regulations and includes a teacher whose contract is deemed to include the terms and conditions contained in the form of con­tract prescribed in the regulations for a permanent teacher;

34. "probationary teacher" means a teacher employed by a board under a probationary teacher's contract made in accordance with the regulations;

35. "temporary teacher" means a person employed to teach under the authority of a let­ter of permission;

36. "part-time teacher" means a teacher employed by a board on a regular basis for other than full-time duty.

Section 230 of the Education Act provides:

230.-(1)) A full-time or part-time teacher who is employed by a board and who is not an occa­sional teacher shall be employed as a permanent or a probationary teacher.

(2) A memorandum of every contract of employment between a board and a permanent teacher or a probationary teacher shall be made in writing in the form of contract prescribed by the regulations, signed by the parties, sealed with the seal of the board and executed before the teacher enters upon his duties, but if for any reason such memorandum is not so made, or has not been amended to incorporate any change made in the form of contract so prescribed, every contract shall be deemed to include the terms and conditions contained in the form of contract prescribed for a permanent teacher.

Thus, the Education Act contemplates three sorts of "teacher": "permanent teacher", "probation­ary teacher" and "occasional teacher";. (A "temporary teacher" is not a "teacher"; these are treacherous semantic waters for those who expect words to have either ordinary or consistent meanings.) Unless a "teacher" is an "occasional teacher", he or she is either employed or deemed to be employed under a contract in the form prescribed by the regulations under the Act": see Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279, application for judicial review dismissed sub. nom Re Ontario Secondary School Teachers' Federation, District 14 and Board of Education of Borough of York and two other applications (1987), 1987 CanLII 4083 (ON HCJ), 58 O.R. (2d) 375, 35 D.L.R. (4th) 588 (Ont. Div. Ct.). In the lexicon of school board employment relations, a teacher employed under a contract in the form prescribed by the regulations under the Education Act is known as a "contract teacher".

5Clause 1(1)(m) of the School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c.464 ("Bill 100"), provides that, for the purposes of that Act

(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.

Bill 100 governs labour relations between school boards and those contract teachers who fall within this definition ("Bill 100 teachers"). As a result, section 2 of the Labour Relations Act provides that

2. This Act does not apply,

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

6The notion that "Bill 100 teacher" and "occasional teacher" are mutually exclusive cat­egories appears in the first decision of the Board which dealt with an application for certification with respect to occasional teachers (The Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273 at paragraph 4) and in Board of Education for the City of York, [1985] OLRB Rep. May 767:

5. It is common ground that the labour relations and collective bargaining of occasional teachers is regulated by the Labour Relations Act. They are not teachers as defined by Bill 100; hence they are not excluded by section 2(f) of the Labour Relations Act [see: section 230 of the Education Act, and section 1(1)(m) of Bill 1001. The result is that the occasionals fall under the Labour Relations Act, while those whom they replace are covered by Bill 100.

7One of the issues in Carleton Roman Catholic Separate School Board, supra, was whether part-time contract teachers who supplemented their income from contract employment by seeking and performing occasional teacher assignments would be excluded from an occasional teacher bargaining unit when performing those assignments. The school board respondent in that case thought that those teachers should be excluded from the occasional teacher unit, even though when performing occasional teaching assignments they would not be covered by the collective agreement negotiated under Bill 100. Indeed, at one point in the proceedings that school board held and expressed the belief that that was the result of the then usual exclusionary language "save and except employees in bargaining units for which any trade union held bargaining rights". The potential of that language to engender that belief is what prompted the concern expressed in the passage quoted in paragraph 3 above. It is certainly reason enough to apply the Board's usual pol­icy that non-existent groups should not be expressly excluded, and to require particulars of the existing bargaining units for which trade unions are said to hold bargaining rights.

8Each of the respondents has a collective agreement with a branch affiliate of the appli­cant covering "teachers" (as defined by Bill 100) in its secondary schools. Each of those agree­ments addresses the problem of "surplus teachers", which arises when the number of contract teachers employed by a school board exceeds the number of contract teachers needed in the fol­lowing year. In each case, provision is made for some teachers whose contracts would otherwise be terminated to remain employed on contract in what one of the agreements describes as a "surplus pool of contracted teachers". Teachers in these pools are assigned to act as replacements for absent contract teachers. They would be used for that purpose before such use is made of teachers who are not under contract. Indeed, one of the agreements describes these contract teachers as "priority occasional teachers".

9The respondents offer the existence of these categories of contract teacher as justifying the use in the bargaining unit description of the exclusionary language originally agreed to by the parties. Implicit in that is the assertion that these contract teachers can fall within the definition of "occasional teacher" by reason of their job functions while remaining "teachers" within the mean­ing of Bill 100 and, hence, excluded from any bargaining unit for which certification may be granted under the Labour Relations Act. In other words, the suggestion is that "occasional teach­er" and "Bill 100 teacher" are not always mutually exclusive categories, and that our description of the bargaining unit should make it clear that it does not include those who fall into both categories at the same time. Balancing this proposition against the above-noted concern that we not appear to exclude those who fall within both categories at different times, we considered the use of the words "save and except persons who, when they are employed as occasional teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act". Counsel agree that this would appear to exclude those whom they have identified. Of course, that language implicitly accepts the proposition that a teacher within the meaning of Bill 100 can fall within the definition of "occasional teacher". We recognize that this is arguably so and that some exclusionary language ought to address those who fall within the scope of that argument. On further reflection, however, it seems to us that the exclusion of contract teachers who might be considered occasional teachers can be adequately noted by the words "save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act." As this merely reflects the necessary result of section 2(f) of the Labour Rela­tions Act, it would be appropriate to use this language even when there are no contract teachers employed as substitutes for other teachers at the time the application is made. Accordingly, it appears to us that the following bargaining unit description would be appropriate in these appli­cations:

all occasional teachers employed by the respondent in its secondary panel in [geographic area] save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act

with the usual clarity note that "occasional teacher" has the meaning assigned to it by clause 1(1)31 of the Education Act.

10There may be situations in which a trade union has bargaining rights for some non-con­tract occasional teachers who would otherwise fall within a unit defined in terms of "all occasional teachers of the respondent (in its [elementary/secondary] panel)". In Board of Education for the City of Hamilton and Ontario Secondary School Teachers' Federation, District 8 (unreported deci­sion dated January 23,1986), an arbitrator found that the parties to an agreement under Bill 100 had expanded its scope beyond contract teachers to cover those occasional teachers who are employed for a period of at least a month. If the OSSTF branch affiliate which was party to that agreement were itself a trade union within the meaning of clause l(l)(p) of the Labour Relations Act, an application for certification for occasional teachers in that school board's occasional panel could not affect those "long-term" occasionals unless it was made during the open season (as calcu­lated under the Labour Relations Act) of the school board's agreement with the branch affiliate. When it is said that some trade union already has bargaining rights under the Labour Relations Act for some persons who would otherwise fall within the bargaining unit description which appears at the end of the previous paragraph, the words "or are teachers as defined in the Education Act who fall within a bargaining unit for which any trade union held bargaining rights under the Labour Relations Act as of [the application date]" could be added to that description. We will not add those words here, as there is no suggestion in any of these applications that there were any second­ary panel occasional teachers in existing bargaining units on the application.

11We turn now to the individual applications before us.

The Sault Ste. Marie Application - Board File No. 0700-87-R

12We find that

all occasional teachers employed by the respondent in its secondary panel in Sault Ste. Marie, save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act

constitute a unit of employees of the respondent appropriate for collective bargaining. 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.

13We are satisfied that not less than thirty-five per cent of the employees of the respon­dent in that bargaining unit were members of the applicant at the time the application was made.

14On the taking of the pre-hearing representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant.

15A certificate will issue to the applicant with respect to the unit described in paragraph 12.

16The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in the Sault Ste. Marie application 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.

The North York Application

17We find that

all occasional teachers employed by the respondent in its secondary panel in the City of North York, save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act

constitute a unit of employees of the respondent appropriate for collective bargaining. 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.

18We are satisfied that not less than thirty-five per cent of the employees of the respon­dent in the bargaining unit were members of the applicant at the time the application was made. Accordingly, the pre-hearing representation vote conducted in this application has the same effect as a representation vote taken under subsection 7(2).

19Sylvia Sherman is an occasional teacher on the voters list. By letter dated October 18, 1987 and received by the Board on October 23, 1987, she asks that the vote be set aside. She claims that she received notice of the vote on September 23, 1987, 6 days before the vote was held. She complains this left insufficient time for her to discuss the matter with other occasional teachers, few of whom would actually have been at work at that time. She also complains that she was unable to get information from the applicant about the benefits of collective representation. She argues that these matters ought to have been addressed by OSSTF before the vote was held in some public forum "where everyone would have the right to be adequately and properly informed." She also makes reference to the fact that of 270 persons on the voters lists, only 43 vot­ed. She says this is not a "significant sampling." She wonders whether the mail strike contributed to the "poor turnout" and whether it is "possible that some supply teachers did not, in fact, receive any notification of a vote."

20Dealing with the last point first, notice of the taking of the September 29th vote was mailed to each of the 270 persons on the voters list on September 18, 1987, addressed to the addresses they had given the respondent school board in connection with their employment as occasional teachers. Notice of the Returning Officer's Report was similarly mailed to those persons on October 6,1987. No one has complained that late notice deprived them of the opportunity to vote. The degree of voter "turnout" is not surprising, in our experience. Our voter eligibility rules in these matters cast a very wide net: persons who have taught only one day in the year preceding the vote date may be eligible to vote (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). It has been our experience with votes of occasional teachers that only a minority of eligible voters typically choose to exercise their right to cast ballots. Subsection 7(3) of the Act provides that "If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union ... the Board shall cer­tify the trade union". This focuses attention on the wishes of those who chose to cast a ballot. While the Board has the discretion to set aside a vote and conduct a second vote, it has not exer­cised that discretion merely because a small number of eligible voters chose to cast ballots (Ottawa General Hospital, [1973] OLRB Rep. Oct. 506) unless that number is zero because eligible voters feared, or might reasonably have feared, that theirs would be the only ballot cast (A. V. Hallan Lathing & Plastering Limited, [1977] OLRB Rep. Sept. 602, Rainy River Valley Health Care Facilities, Inc., [1985] OLRB Rep. Feb. 316). Although we do not suggest that there could be no other "low turnout" situations in which the Board might exercise its discretion to conduct a second vote, we are not persuaded that we should do that in this case merely because the occasional teach­ers interested enough to vote numbered only 43 out of a possible 270.

21As for Ms. Sherman's concern that OSSTF did not hold or participate in some public forum to debate the benefits of collective bargaining, we can only note that it was under no legal duty to do so. As the Board noted in Strathmere Lodge, [1973] OLRB Rep. Aug. 425, "the Board is not concerned as to the manner in which a trade union conducts either an organizing campaign or electioneering when a vote is directed, provided there is no allegation of coercion or intimida­tion or any other unfair labour practice under the Act." Eligible voters who feel that an applicant trade union has not adequately explained its position can vote against it. Finally, in a labour rela­tions context, six days was quite adequate notice of the opportunity to answer the question "In your employment relations with North York Board of Education, do you wish to be represented by Ontario Secondary School Teachers Federation?"

22The ballots of 2 of the 43 persons who attended at the vote were segregated as there was a dispute about their eligibility to vote. Of the remaining 41, 33 cast "YES" ballots; 8 ballots said "NO". Clearly, in the vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant, whether or not either of the challenged voters was eligible to vote. We are not prepared to set aside the results of that vote.

23Accordingly, a certificate will issue to the applicant with respect to the unit described in paragraph 17.

24The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in the North York application following the expiration of 30 days from the date of the 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.

The Wellington Application

25In its pre-vote decision in this application, the Board noted that

8. The 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.

The respondent did not abandon its submission. The ballot box was sealed following the taking of the vote. The respondent now argues that we should refuse to entertain this application in the exercise of our discretion under clause 103(2)(i), citing the Board's decisions in J. W. Crooks Company, [1972] OLRB Rep. Feb. 126 and St. Joseph's Hospital at Sarnia, [1984] OLRB Rep. Sept. 1264. The circumstances dealt with in those decisions are clearly distinguishable. Here there is only one previous application, which was made on May 1, 1987 and dismissed June 1, 1987 when the applicant sought leave to withdraw it. We do not think those circumstances warrant a refusal to entertain this application.

26We find that

all occasional teachers employed by the respondent in its secondary panel in Wellington County, save and except persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act

constitute a unit of employees of the respondent appropriate for collective bargaining. 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.

27We are satisfied that not less than thirty-five per cent of the employees of the respon­dent in the bargaining unit were members of the applicant at the time the application was made. Accordingly, the pre-hearing representation vote conducted in this application has the same effect as a representation vote taken under subsection 9(2) of the Labour Relations Act.

28The ballots of two persons who attended at the vote in this application were segregated because their names did not appear on the voters lists. Neither of those persons has sought to make representations with respect to their entitlement to vote. Both the applicant and respondent say they were not eligible voters. The respondent states that neither worked as an occasional teacher in its secondary panel in the twelve-month period prior to the application date. The correct threshold test, however, is whether they taught on an occasion or occasions which fell within both the one-year period prior to June 25, 1987 and the one-year period prior to the date of the vote. If these individuals taught in the secondary panel sometime between the application date (June 11, 1987) and June 25, 1987, they might have been eligible voters. The parties are directed to advise the Board whether or not either individual taught in the secondary panel in that time frame. If they agree that one or both did, the ballot(s) of the person(s) who did shall be counted. Otherwise, the subject ballots shall remain segregated.

29Subject to the directions in paragraph 28, we direct that all ballots cast in the represent­ation vote in the Wellington application now be counted.