Ontario Secondary School Teachers' Federation v. Ottawa Board of Education

[1988] OLRB Rep. June 610

2845-87-R Ontario Secondary School Teachers' Federation, Applicant v. Ottawa Board of Education, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.

DECISION OF THE BOARD; June 9, 1988

1. By decision dated February 24, 1988, the Board directed the taking of a pre-hearing representation vote in this application for certification. The vote was held on March 7, 1988.

2. The parties disagreed about the inclusion in the bargaining unit of the occasional teach­ers employed by the respondent in its French language secondary schools established pursuant to Part XI of the Education Act ("the Part XI teachers"). Accordingly, the Board directed that the voting constituency include those teachers but that should any of them attend to vote, his or her ballot was to be segregated.

3. The parties have agreed that we should determine this issue on the basis of their written submissions. (See the letter from counsel for the respondent dated March 15, 1988 and the letter from counsel for the applicant dated June 6, 1988.) There was no request for a hearing by any of the employees who were sent by mail "Notice of Report of Returning Officer Where Pre-Hearing Representation Vote has been held" (Form 71) which describes how representations may be made to the Board.

4. The elementary unit includes the Part XI teachers; the union argues, however, that in this case, there should not be a "mirroring" of units, since the number of Part XI teachers on the secondary panel is sufficient to constitute a separate unit of their own and because it has been the standard practice of the Board to exclude them.

5. The union relies on the announced intention of the Ontario government to establish a French school board in the Ottawa region. We are not aware that such intention has yet been real­ized. It also states that the Francophone Teachers Association (AEFO) has indicated that it is in the process of organizing the French occasional teachers, but we have no evidence of that and in any case, there is no application before this Board.

6. The Board of Education contends that the Part XI teachers should be included in the unit. It attempts to distinguish Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090, in which the Board certified L'Association des Enseignantes et Enseignants Suppleants for a bargain­ing unit comprised of Part XI teachers on the basis of the degree of community of interest between the English and French occasional teachers.

7. In Le Conseil Scolaire d'Ottawa, supra, the Board based its decision not only on the fact that under the School Boards and Teachers Collective Negotiations Act, 1975, R.S.O. 1980, c. 464 ("Bill 100"), the AEFO is given recognition as an affiliate teachers' organization representing fran­cophone teachers wherever they are employed and that "[t]his in itself suggests that the franco­phone teachers may have a distinct community of interest", but also on the evidence adduced from which it was able to conclude that in that case, the Part XI teachers did in fact have a separate community of interest.

8. We note that while the respondent agreed to have the matter determined on the basis of written submissions, it also indicated that it was prepared to call evidence on these points. On the other hand, while the union has not specifically disputed the statements made by the Board of Education in its letter, at the meeting with the Labour Relations Officer held before the directing of the vote, it maintained that there is very little community of interest between the two groups. Therefore, given the dispute between the parties and the relevance of the issue of community of interest, upon reviewing the material filed at hearing by the parties in this application, we are of the view that we require evidence about the degree of community of interest between the two groups of teachers.

9. Regardless of the way in which this issue is resolved, however, the outcome of the vote is in the applicant's favour and therefore we may grant interim certification under subsection 6(2) of the Labour Relations Act ("the Act") if the requirements of the pre-hearing vote were satisfied.

10. No other statement of desire to make representations has been filed with the Board within the time fixed under subsection 70(2) of the Board's Rules of Procedure.

11. The Board finds that the applicant is a trade union within the meaning of clause l(l)(p)

of the Act.

12. For purposes of interim certification, the Board finds that

all occasional teachers employed by the respondent in its secondary panel in Ottawa, save and except those employees teaching in schools pursuant to Part XI of the Education Act and those persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act.

Clarity Note: Occasional Teacher has the meaning assigned to it by section 1(1)31 of the Education Act, and an employee who does not have the qualifi­cations of a "teacher" as defined by s. 1(1)66 of that Act does not fall within that description.

constitute a unit of employees of the respondent appropriate for collective bargaining. (Should the Board conclude that Part XI teachers should be included in the unit, the final certificate issued would reflect that.)

13. The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit, whether it includes Part XI teachers or not, were members of the applicant at the time the application was made.

14. On 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. This outcome would not be affected even if all the segregated ballots had been cast against the union.

15. Therefore, we grant the applicant interim certification in this matter.

16. We also direct the appointment of a Labour Relations Officer to conduct an inquiry into the question of the community of interest between the English and French teachers based on the principles articulated in Usarco Limited, [1967] OLRB Rep. Sept. 526.

17. This matter is referred to the Registrar.