[1988] OLRB Rep. January 106
2451-87-R Ontario Secondary School Teachers' Federation, Applicant v. The Board of Education for the City of York, Respondent v. Association of Professional Student Services Personnel, Intervener #1 v. The Canadian Union of Public Employees, Intervener #2
BEFORE: Owen V. Gray, Vice-Chair, and Board Members D. A. MacDonald and H. Peacock.
APPEARANCES: Maurice A. Green, Fred Birket, Joan Farrell, and Mark Dooner for the applicant; Steven L. Moate, Norman Ahmet, Barry Rowland and Ben Lindberg for the respondent; C. M. Dassios, Ann Mills, Mal Godin, Mike Tapa, Ann Pepper and David Warren for intervener #1; no one appearing for intervener #2.
DECISION OF THE BOARD; January 25, 1988
In this proceeding, the Ontario Secondary School Teachers' Federation ("OSSTF") seeks certification under the Labour Relations Act ("the Act") as exclusive bargaining agent for a unit of employees of the respondent school board currently represented by the Association of Professional Student Services Personnel ("APSSP").
OSSTF has been found to be a trade union within the meaning of clause l(l)(p) of the Act in previous proceedings under the Act. None of the parties to this application challenges the proposition that the applicant is a trade union. Accordingly, having regard to section 105 of the Act, we find that the applicant is a trade union within the meaning of clause l(l)(p) of the Act.
The unit currently represented by the APSSP consists of
all psychologists, psycho-educational consultants, social workers and attendance counsellors employed by the respondent in the City of York, save and except senior psychologists, senior social workers, persons above the rank of senior psychologists and senior social workers and persons regularly employed for not more than 24 hours per week.
The parties in attendance at the Board's hearing of this application all agreed that that constitutes the unit of employees of the respondent appropriate for collective bargaining for the purpose of this application, and we so find.
The APSSP asserted that OSSTF could not or should not be certified as exclusive bargaining agent for employees in the bargaining unit because, it alleged, the constitution and by-laws of OSSTF do not allow such persons to become members of that trade union.
OSSTF is a non-profit corporation under the Ontario Corporations Act. By Supplementary Letters Patent issued on May 15, 1987, the Letters Patent of OSSTF were amended to include the following paragraph in its objects:
(a) to associate and unite the Secondary School Teachers and other professional employees of educational institutions offering secondary school credits in the Province of Ontario and to promote and safeguard their interests.
The provisions of the By-laws of the OSSTF have not since changed. They still provide for membership of two sorts of persons: statutory members, who are teachers (within the meaning of the Teaching Profession Act) who are employed to teach in a secondary school under the form of contract contemplated by section 230 of the Education Act, and non-statutory members "who shall be employed in an educational capacity by a Board of Education or Educational Institution offering secondary school credits in Ontario." (See the Oxford County Board of Education, [1985] OLRB Rep. Sept. 1409 at paragraph 4.) Counsel for OSSTF proposed to introduce evidence and argument that:
(a) the amendment to its Letters Patent permitted the executive of OSSTF to admit "professional employees of education institutions" into membership even if they are neither secondary school teachers and nor persons "employed in an education capacity";
(b) the employees affected by this application are "employed in an educational capacity by a Board of Education"; and,
(c) in any event, the OSSTF has an established practice of admitting such persons to membership without regard to the eligibility requirements of its Letters Patent or By-laws.
With respect to the last point, counsel for OSSTF asserted that, apart from the employees affected by this and other similar applications heard on the same day, the OSSTF had earlier organized similar employees of another board of education and taken such employees into membership and, after filing a certification application, had been granted voluntary recognition as exclusive bargaining agent for those employees by that school board. Counsel for the APSSP and for the respondent both agreed that we could take these assertions as fact without more formal proof. Counsel for the APSSP acknowledged, and counsel for the respondent did not dispute, that those facts revealed a practice of the sort referred to in subsection 103(4) of the Act and constituted an effective answer to the issue raised by the intervener. In those circumstances, it was unnecessary for us to consider whether, as counsel for the APSSP asserted (relying on earlier decisions of this Board), a trade union may be denied either outright certification or the opportunity of a representation vote notwithstanding its timely filing of written evidence that the requisite percentage of those employed in the appropriate bargaining unit on the application date had, by the date contemplated by subsection 7(1) of the Act, each "applied for membership in the trade union and ... paid to the trade union on his own behalf an amount of at least $1.00 in respect of initiation fees or monthly dues that the trade union" (see clause 1 (1)(l) of the Act).
We are satisfied on the basis of all &f the evidence before us that more than fifty-five per cent of the persons employed by the respondent in the bargaining unit at the time this application was made were members of the applicant on December 21, 1987, the terminal date fixed for this application and the date which we determine, under section 103(2)(j) of the Act, to be the time for the purpose of ascertaining membership under subsection 7(1) of the Act. As certification of the applicant would terminate the existing bargaining rights of another trade union, we exercise our discretion under subsection 7(2) of the Act by directing that a representation vote be conducted among employees in the bargaining unit (see Famz Foods Limited, [1984] OLRB Rep. Dec. 1714 and the cases cited in paragraph 4 thereof).
All those employed in the bargaining unit on January 8,1988 who are so employed on the date the vote is conducted will be eligible to vote.
Voters will be asked whether they wish to be represented by the applicant or intervener #1 in their employment relations with the respondent.
The matter is referred to the Registrar.