[1987] OLRB Rep. December 1600
0853-87-R Ontario Secondary School Teachers' Federation, Applicant v. The Peel Board of Education, Respondent
BEFORE: Robert D. Howe, Vice-Chain, and Board Members R. M. Sloan and H. Peacock.
APPEARANCES: Maurice Green, Malcolm Buchanan, Joan Farrell, Ed Bergey and John Black for the applicant; Carl W. Peterson and Martin A. Fowler for the respondent.
DECISION OF THE BOARD; December 8, 1987
In a decision dated July 22, 1987 in this matter, another panel of the Board directed that a pre-hearing representation vote be taken and that the ballot box be sealed and the ballots not counted pending determination of the parties' dispute oven the composition of the appropriate bargaining unit. The representation vote was taken on September 24, 1987 and the ballot box was sealed in accordance with the Board's direction.
When this matter came on for hearing before the present panel of the Board on November 6, 1987, counsel for the applicant and counsel for the respondent confirmed that the description of the bargaining unit was the sole issue in dispute between the panties. After hearing and recessing to consider the submissions of counsel with respect to that issue, the Board made the following oral ruling:
Having duly considered the able submissions of counsel for the applicant and counsel for the respondent, we are unanimously of the view that the bargaining unit sought by the applicant (i.e., all occasional teachers of the respondent in its secondary panel in the Regional Municipality of Peel) is an appropriate unit for collective bargaining. As acknowledged by counsel for the respondent, the Board has a well-established practice of placing secondary panel occasional teachers in a separate bargaining unit from elementary panel occasional teachers. As noted by the Board in The Board of Education for the City of Toronto, ~i983] OLRB Rep. Feb. 273, in paragraph 21, "[t]he historical dichotomy between elementary school teachers and secondary school teachers is reflected in the special legislation which governs collective negotiations between Boards of Education and 'contract' teachers (i.e., the School Boards and Teachers Collective Negotiations Act)". The Board's decisions in this area have mirrored that approach, which, as further noted in the Toronto case, is consistent with the Board's practice of describing bargaining units of part-time employees (who are somewhat analogous to the employees affected by this application) in a fashion which mirrors the description of their full-time counterparts. There is a greater degree of interchange between the two units in this case than there was in the Toronto case. Of the 283 persons who have taught in the secondary panel as occasional teachers in the 1986-87 school year, 142 have also taught in the elementary panel as occasional teachers. However, a review of the number of days taught by them in each panel indicates that an overwhelming majority of them teach primarily in one panel or the other. Moreover, of the 632 persons who taught as occasional teachers in the elementary panel during the 1986-87 school year, 490 taught only in that panel. Thus, there was no interchange in respect of that very substantial group of occasional teachers. Although the degree of interchange between the two panels is a factor to be considered, as is the fragmentation of the respondent's wonkforce which is already divided into seven bargaining units, the need for an element of certainty in this already complex area must also be considered. It is evident that the applicant, and other trade unions which organize in this field, have relied upon the Board's well-established practice in this area in carrying on their organizational activities. Indeed, as noted by counsel for the applicant, in a letter dated July 20, 1987, the Ontario Public School Teachers' Federation advised the Board (through its Registrar) that it is in the process of organizing the elementary occasional teachers employed by the respondent. Finally, we would note that granting the bargaining unit requested by the applicant will not automatically lead to a reduction in the size of the pool of occasional teachers whom the respondent will be able to call upon to meet its staffing needs in respect of the secondary panel. If this application succeeds, it will be open to the parties to negotiate provisions regarding seniority and staffing which are tailored to meet their particular circumstances.
For the foregoing reasons, the Board, in the exercise of its discretion under section 9(4) of the Act, hereby determines that all occasional teachers of the respondent in its secondary panel in the Regional Municipality of Peel 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.
We are further satisfied that not less than thirty-five pen cent of the employees in that bargaining unit were members of the applicant at the time this application was made.
The Board hereby directs that the ballot box shall be unsealed and that the ballots cast in the pre-hearing representation vote which has been conducted in respect of this application shall be counted.
No statement of desire to make representations has been filed with the Board within the time fixed under subsection 3 of section 70 of the Board's Rules of Procedure following the counting of the ballots pursuant to that direction.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
On the taking of the pre-hearing representation vote directed by the Board more than fifty per cent of the ballots cast were marked in favour of the applicant.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of thirty 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 thirty-day period.