Ontario Public School Teachers' Federation v. The Board of Education for the City of Hamilton, 1987 CanLII 3298

[1987] OLRB Rep. June 847

0490-87-R Ontario Public School Teachers' Federation, Applicant V. The Board of Education for the City of Hamilton, Respondent V. Ontario Secondary School leachers' Federation, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members I. M. Stamp and J. Redshaw. DECISION OF THE BOARD; June 12, 1987, as amended June 24, 1987

1. This is an application for certification filed May 19, 1987, in which the applicant has requested that the Board conduct a pre-hearing representation vote.

2. The 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 elementary panel in the City of Hamilton, save and except employees in bargaining units for which any trade union held bargaining rights as of May 19, 1987.

We do not determine the appropriate bargaining unit at this stage. We are prepared to and do adopt the parties' description of the voting constituency, with the clarificatory observation that "occasional teacher" in this context has the meaning assigned to it by clause 1(1) ¶31 of the Education Act, R.S.O. 1980, C.129, as amended. A pre-hearing representation vote may be directed in this voting constituency under subsection 9(2) of the Act if it appears to the Board, from the records of the applicant and the records of the respondent, that not less than thirty-five percent of the employees in the voting constituency were members of the trade union at the time the application was made.

3. Because of the nature of the relationship between a school board and the persons it calls upon to act as occasional teachers from time to time, identification of "the employees in the voting constituency" at any particular point in time creates special difficulties in applications involving occasional teachers and has attracted the application of special tests: 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. The applicant has challenged a number of the names on the list of persons whom the respondent says were "employees in the voting constituency" at the time of the application. The applicant has the requisite appearance of membership support only if a substantial number of the persons it has challenged were not, in fact, "employees in the voting constituency" as of the application date. In such circumstances~ the Board ordinarily directs that a representation vote be conducted and that the ballot box be sealed and the ballots cast not counted unless and until the determination contemplated by subsection 9(4) of the Act have been made: The Board of Education for the City of North York, [1984] OLRB Rep. July 989.

4. Upon an examination of the records of the applicant and the respondent, assuming that the applicant's position on the matters in dispute is correct, 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.

5. All employees of the respondent in the voting constituency on June 3, 1987, who have neither voluntarily terminated their employment nor been discharged for cause between that date and the date of the vote will be eligible to vote. Voters will be asked whether they wish to be represented by the applicant in their employment relations with the respondent.

6. An understanding of the scope of this voter eligibility direction depends on an understanding of the meaning of "employees ... in the voting constituency" in the context of an application for certification with respect to occasional teachers. In Board of Education for the City of York, supra, the Board decided that an occasional teacher will be treated as an employee in a voting constituency or bargaining unit of occasional teachers employed by a school board if, as at the relevant date, he or she

(a) is on the "panel" or list which the school board maintains of those persons whom it considers eligible for and interested in occasional teaching assignments with that school board;

(b) remains actively interested in performing such occasional teaching assignments as might arise from time to time; and

(c) has actually worked for the school board as an occasional teacher on at least one day in the one year period immediately preceding the point in time as of which the determination is to be made.

These tests may be insufficient in the case of a teacher whose actual teaching assignments with a school board sometimes fall within and sometimes fall outside the occasional teacher unit applied for.

7. The employees of any particular employer may constitute more than one bargaining4nit or potential bargaining unit for the purposes of collective bargaining. In the industrial context, for example, office and clerical employees are ordinarily regarded as forming an appropriate bargaining unit separate and distinct from the "plant" unit of employees engaged in production. There ~re usually several appropriate units of employees of school boards organized or capable of being organized for the purpose of collective bargaining. An employee who is a teacher (as that term is defined by The Education Act) and employed to teach will fall within one of the bargaining units in respect of which collective bargaining takes place under the School Boards and Teachers Collective Negotiations Act R.S.O. 1980, C.464 (often referred to, and referred to here, as "Bill 100") unless 1 Le or she is an occasional teacher. Collective bargaining for occasional teachers falls under the Labour Relations Act. In dealing with occasional teachers, this Board's approach to bargaining unit description has mirrored, to some extent at least, the bargaining unit structure created by Bill 100. Teachers employed as occasional teachers in Part XI (french speaking) schools - that is, those who ct as substitutes for permanent or probationary teachers represented under Bill 100 by a branch affiliate of L'Association des Enseignants Franco-Ontariens - have been treated as a distinct bargaining unit: Le Conseil Scolaire D'Ottawa, [1985] OLRB Rep. July 1090. Occasional teachers on a school board's "elementary panel" - that is, those who act as substitutes for permanent and probationary teachers represented under Bill 100 by branch affiliates of The Federation of Women Teachers' Associations of Ontario or The Public School Teachers' Federation - are treated as a init separate and distinct from occasional teachers on the school board's "secondary panel" - that is, those who act as substitutes for permanent and probationary teachers represented under Bill 100 by the Ontario Secondary School Teachers' Federation: The Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273.

8. A bargaining unit comprises the employees for whom a particular trade union is to be the exclusive bargaining agent. The notion of exclusivity requires that bargaining units be so defined as to ensure that an employee falls within only one such unit at any particular point in time. Returning to the industrial example in which office and clerical employees are excluded from the unit into which plant employees fall, an employee may move back and forth between the office and the plant and so fall within the plant unit and the office unit at different times, but that employee cannot be in both units at the same time: see Laurent Lamoureux Co. Ltd. [1985] OLRB Rep. Nov. 1618 at paragraph 15. By way of example in the school board context, a teacher employed by a school board as a permanent teacher on a part-time basis may also take occasional teaching assignments with the same school board. While engaged in his or her duties as a part-time Permanent teacher, that teacher would be governed by the collective agreement negotiated under I sill 100. While performing an occasional teacher assignment as a substitute for another permanent r probationary teacher, that teacher would fall within an occasional teacher bargaining unit and lie governed by any collective agreement which might have been negotiated in respect of occasional teachers in that unit: Carleton Roman Catholic Separate Board, [1987] OLRB Rep. Jan. 18. If occasional teachers employed by a school board are divided into more than one bargaining unit on the basis of language or grade level of instruction, a teacher may move from unit to unit according to the nature of the occasional teaching assignments he or she performs from time to time. Just as in the industrial context mentioned earlier, that employee may be in different bargaining units at different times, but cannot be said to be in two or more bargaining units of one employer simultaneously.

9. In circumstances in which teachers receive a variety of teaching assignments in the course of a year, the application as of a particular date of the test propounded in City of York Board of Education, supra, can lead to the conclusion that the employee was in two or more bargaining units simultaneously on that date. The Board had to deal with this problem in The Board of Education for the City of Scarborough, [1987] OLRB Rep. Jan. 119. In that decision, the Board concluded that teachers who "ordinarily" acted as substitutes for secondary school teachers but "occasionally" worked in the elementary schools in the year preceding the relevant date, should not be regarded as falling within the bargaining unit of elementary panel occasional teachers as of that date. We take this to mean that when the application of the York test places a particular teacher in more than one existing or potential unit of teachers, that teacher will be treated as falling within the bargaining unit to which he or she has the greatest attachment as of that time, in terms of the relative quantities of work performed during the year preceding the relevant date in each of the bargaining units of teachers employed by the subject school board.

10. Any dispute as to whether a particular teacher was employed in the voting constituency or the appropriate bargaining unit for the purpose of the count or of the vote in this case can only be determined after the vote has been conducted. Any person who claims to fall within the voting constituency we have defined will be permitted to cast a ballot. If any voter's eligibility is challenged, his or her ballot will be segregated and not counted until the question of eligibility has been resolved. Additionally, the ballot box will be sealed and none of the ballots counted unless and until the Board is satisfied that not less than thirty-five percent of the employees in the bargaining unit ultimately found appropriate were members of the applicant at the time the application was made.

11. While the proper description of the appropriate bargaining unit will be decided by the Board after the vote is conducted and all interested persons have had the opportunity of a hearing, some comment on that issue is warranted in view of the parties' discussions with the Labour Relations Officer in this matter as noted in his report to the Board. 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.

13. In 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 person 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 he voters list. If the addresses on the applicant's and respondent's labels for any person differ, notices will be sent to both addresses.

14. There is one final matter on which we feel we must comment. At the time this application was filed there was another application for certification before the Board (Board File No. 3337-86-R) affecting employees of the respondent. No final decision had then (or has since) been made in that application. While the unit applied for in that application consisted only of full-time 'educational assistants", in a decision dated April 21, 1987 the Board (differently constituted) concluded that it should consider whether any categories of unorganized employees of the respondent other than educational assistants should be included with educational assistants in the appropriate unit for that application. It directed that notice be given to all such unorganized employees that hey were affected by that application as a result of the Board's expansion of its bargaining unit inquiry. The list of unorganized employees identified in the decision includes "occasional supply teachers" and "long-term occasional teachers." It might be argued, therefore, that occasional teachers were "affected by" the earlier application when this one was filed on May 19, 1987 and hat this application is a "subsequent application" within the meaning of subsection 103(3) of the Act, which provides:

Notwithstanding sections 5 and 57, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such certification or for such a declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the sub-sequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application.

If this is a subsequent application, the approach in subparagraph 103(3)(b) is the one which the Board would ordinarily take. That raises the question whether the "consideration" postponed under that approach is just consideration of the merits of the application or whether "consideration" is so broad as to cover processing and other procedural handling of the subsequent application, including any direction or conduct of a pre-hearing vote.

15. This issue was not identified by the Board during the initial processing of this application. It is not referred to in the Labour Relations Officer's report on his conference with the parties about the issues in this application. The issue only came to this panel's attention after receiving the officer's report on that conference. The parties have planned for a vote scheduled for June 23, 1987. There is not time to entertain, invite and consider the parties' submissions on this issue before that date. It may be that the panel dealing with that other application would not or will not regard it as affecting occasional teachers, having regard to the Board's heretofore very firm policy of treating occasional teachers within the meaning of clause 1(1)¶31 of the Education Act as an appropriate unit by themselves: Windsor Roman Catholic Separate School Board, [1986] OLRB Rep. July. 1028 at paragraph 6; Carleton Roman Catholic Separate School Board, supra, at paragraph 17. It may also be that, after a thorough consideration of the point, the Board would conclude that the direction and conduct of a pre-hearing vote do not constitute "consideration" of the sort postponed under subparagraph 103(3)(b). The first of those questions can only be addressed by the panel which deals with the earlier application; neither question can be addressed properly before June 23rd. In these rather unique circumstances, the vote should proceed. After the vote has been conducted and notice given in Form 72, this application should be listed for hearing with respect to the applicability and effect of subsection 103(3) before the panel dealing with the earlier application (Board File 3337-86-R). That other application should be scheduled for hearing by that panel at the same time, so that all parties interested in the scope of that earlier application can address that aspect of the issue.

16. The matter is referred to the Registrar.