Ontario Labour Relations Board
[1988] OLRB Rep. September 888
3112-87-R Ontario Catholic Occasional Teachers' Association, Applicant v. Frontenac-Lennox and Addington County Roman Catholic Separate School Board, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Bernard Hanson, Ray Fredette and Anthony Burke for the applicant; Mary Beth Currie, Raymond Doyle and Madelaine Murphy for the respondent.
DECISION OF THE BOARD; September 14, 1988
- This is an application for certification in which the applicant requested that a pre-hearing representation vote be taken. The parties are in dispute with respect to the description of the appropriate bargaining unit. The applicant proposed the following alternative descriptions:
All occasional teachers of the respondent in the Counties of Frontenac, Lennox and Addington,
or
all occasional teachers employed by the respondent in the Counties of Frontenac, Lennox and Addington, 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.
Clarity Note:
"Occasional teacher" has the meaning assigned to it by clause 1(1)31 of the Education Act.
The respondent takes the position that the following constitutes an appropriate bargaining unit:
All occasional teachers employed by the respondent in its schools in the Counties of Frontenac, Lennox and Addington, save and except those employees teaching in schools pursuant to Part XI of the Education Act, and employees in any bargaining unit for which a trade union held bargaining rights as of February 17, 1988.
- To ensure that the results of the vote would be useful in any event of this dispute, the Board directed that a pre-hearing representation vote be taken of the employees in the following voting constituency:
All occasional teachers employed by the respondent in the Counties of Frontenac, Lennox and Addington, 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.
Clarity Note:
"Occasional teacher" has the meaning assigned to it by clause 1(1)31 of the Education Act.
The Board then ordered that the ballots of Part XI teachers be segregated and not counted pending the resolution of this issue. In addition, since the respondent had also alleged that a portion of the membership evidence collected in this matter was defective, the ballot box was sealed and the ballots remain uncounted at this time. The matter was then set down for a hearing.
At the hearing, the Board decided to proceed with the allegations with respect to membership evidence first. The parties were able to agree on the following facts, and then made their submissions on the basis of those facts. The membership cards were distributed to teachers either in person or through the mail from the union office. A number of them were returned by mail to the union office together with the sum of one dollar each. Ray Fredette, the Form 9 signatory and an executive assistant of the union, was given the letters by office staff at which point he telephoned each applicant and confirmed that the application had been completed by that person in the manner indicated on the card, and that they had enclosed one dollar. He verified that the individual in question had indeed signed the card and that the payment had been made by them. If all these questions were answered in the affirmative, Mr. Fredette signed as the collector on the cards, recorded the date, issued a receipt and a duplicate membership card and sent the last two items to the new member. Where the one dollar payment took the form of a cheque, those cheques were cashed. The manner of collecting the cards was disclosed in a schedule attached to the Form 9 filed by Mr. Fredette together with a list of the names and telephone numbers of employees involved.
On the basis of these facts, the respondent argued that this method of collection could lead to uncertainty and abuse and that the Board should decline to accept the membership evidence obtained in this manner. The applicant pointed out that the Board had accepted this kind of membership evidence in E. B. Eddy Products Limited, [1977] OLRB Rep. Oct. 694; Cooper-Weeks Limited, [1970] OLRB Rep. Jan. 1221; Photomat Canada Limited, [1979] OLRB Rep. April 306; and Canadian Gypsum Company Limited, [1961] OLRB Rep. Nov. 280 and argued that any change in the Board's practice should not operate retrospectively.
The Board delivered the following oral decision:
Having carefully considered the submissions of the parties, we find that the membership evidence submitted in this matter meets the requirements of the Labour Relations Act and the Board's jurisprudence.
The Board then turned to the bargaining unit dispute. After hearing the parties' evidence and submissions, the Board reserved its decision.
The essence of this dispute is that the applicant asserts that Part XI occasional teachers, who teach in the French language, should be included in a bargaining unit with occasional teachers who provide instruction in the English language. The respondent takes the position that these two groups do not share a community of interest and that Part XI occasional teachers should be excluded from the bargaining unit.
In this connection, the Board heard the evidence of Raymond Doyle, Director of Education and Chief Executive Officer for the respondent. The respondent operates twenty-one English language schools and two French language schools, one of which is located on part of the premises of an English language school. Student eligibility for the French language schools is limited by certain criteria. At the present time, there is a three member French language education counsel which forms part of the Board of Education proper, whose members have been selected through a quasi-election process by the parents of those students eligible for French language instruction. Eventually, the respondent will have a number of French language trustees who will have particular responsibility for the French language schools. Most matters dealt with by the respondent are within the common jurisdiction of the English and French trustees. However, the Education Act, R.S.O. 1980, c. 129 as amended appears to contemplate some separation of responsibility under section 277(m), which among other things provides as follows:
(1) The following matters are within the exclusive jurisdiction of the French-language section of a Board:
- The recruitment and assignment of teachers and administrative and supervisory personnel for French language instructional units.
The recruitment and assignment of Part XI teachers is essentially the same as that for other occasional teachers except that advertising is placed in French language newspapers rather than English language newspapers. All vacancies are posted in both groups of schools. At the moment the two French language schools are supervised by a supervisory officer who also supervises English language schools. However, the respondent is recruiting a supervisory officer for the French language schools who will also perform other administrative duties not specific to the French schools. All supervisory officers report to the Director of Education.
Part XI occasional teachers are licensed to teach in the French language whereas other occasional teachers are licensed to teach in the English language. Their training is essentially the same aside from the fact that it is carried out in different languages. It appears that only four out of eighteen Part XI occasional teachers hold the appropriate teaching licences. The remainder are unlicensed people who have been recruited from the francophone parent community. There appears to be very little interchange in work assignments between Part XI and other occasional teachers. It is rare that a teacher would hold licences to teach in both languages, and while it is possible that a teacher licensed to teach in the English language could teach in one of the French schools and vice versa, it appears to be an unusual occurrence.
Teachers employed by the respondent other than occasional teachers are covered by the School Boards and Teachers Collective Negotiations Act, 1975, R.S.O., 1980, c. 464 - ("Bill 100") rather than the Labour Relations Act. (Occasional teachers are excluded from the ambit of Bill 100 and fall within this Board's jurisdiction). Bill 100 teachers are divided into English instruction and French instruction bargaining units by virtue of the Bill, which sets out an elaborate scheme of representation based in part upon gender, religion and language. However, French language and English language teachers are permitted to bargain jointly, and those employed by this respondent have in fact bargained jointly for the last ten years. They are covered by one collective agreement resulting from those sets of negotiations.
There is also another bargaining unit for all remaining non-teaching staff and education assistants represented by the Canadian Union of Public Employees Local 1479. That unit includes staff working with both French and English language schools, and it is covered by one collective agreement. The respondent itself is one corporate entity. There is also no distinction between non-teaching personnel in the respondent's central offices relating to French and English language schools and no division of personnel into Part XI and non-Part XI functions. Each school has some of its own administrative staff located on the premises. French and English language schools have separate lines in the respondent's budget.
For the most part, the respondent appears to have established policies with respect to the setting of terms and working conditions, hours of work, wages and benefits for all occasional teachers regardless of the language in which they teach. Neither is there any difference in the wages, benefits and working conditions between Part XI and non-Part XI teachers covered by Bill 100.
On the basis of these facts, the respondent argued, among other things, that Part XI occasional teachers do not share a community of interest with other occasional teachers, that the Education Act recognizes the unique status and needs of the French language community, and that the occasional teachers' bargaining units should mirror those of the Bill 100 teachers. In support of its position, counsel for the respondent referred to Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090, in which the Board found that a bargaining unit consisting of only Part XI occasional teachers was appropriate for collective bargaining.
The applicant argued that the work of the occasional teachers was essentially identical and that there was no question that the larger bargaining unit was viable given the experience of Bill 100 teachers employed by the respondent, and the CUPE bargaining unit. The applicant asserted that it was not the practice of the Board to mirror the bargaining structure of Bill 100, and that on the basis of the Board's jurisprudence, either an all-occasional teacher bargaining unit or separate bargaining units for Part XI and other occasional teachers would be appropriate. In these circumstances, the applicant referred to the Board's test in The Hospital For Sick Children, [1985] OLRB Rep. Feb. 266 and argued that the evidence in this case points to that test having been met. In support of this view, the applicant refers to Sault Ste. Marie District Roman Catholic Separate School Board, [1988] OLRB Rep. Jan. 91 in which the Board found that a bargaining unit which included both Part XI and other occasional teachers was appropriate.
The Board has been accorded a broad discretion under section 6 of the Labour Relations Act to shape units of employees appropriate for collective bargaining. In The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 the Board observed that there may be more than one appropriate bargaining unit and that this is not an area of labour relations amenable to exactitude or precision:
The Board has long recognized that the structure and appropriateness of a bargaining unit cannot be determined with scientific precision. In any given situation there may not be only one uniquely appropriate bargaining unit. Quite the contrary. As we have already noted, the institution of collective bargaining has shown itself capable of accommodating a variety of bargaining structures, even in broadly similar circumstances, and in particular situations there may be several alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriateness"~ with one or more unit descriptions being appropriate, even though some other (usually more comprehensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi - plant unit.
- The Board has also said that it is not necessary for the bargaining unit to be the most appropriate unit, so long as it represents an appropriate unit (Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481; University of Windsor, [1983] OLRB Rep. Mar. 478). In Hospital for Sick Children, supra, the Board posed the following formula:
Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer?
- This case provides a good example of the proposition that there may be more than one appropriate bargaining unit configuration. In Le Conseil Scolaire d'Ottawa, supra, the applicant union had applied for a bargaining unit consisting of only Part XI occasional teachers. After reviewing the structure in the education sector and the particular facts before it, the Board found the applicant's proposed unit to be appropriate. In contrast, in Sault Ste. Marie District Roman Catholic Separate School Board, supra, the applicant had applied for a unit which included both Part XI and other occasional teachers. The employer sought to exclude Part XI teachers from the bargaining unit and referred to Le Conseil Scolaire d'Ottawa, supra. The Board commented on that decision as follows:
The employer relies on the decision of the Board in Le Conseil Scolaire d'Ottcwa, [1985] OLRB Rep. July 1090. In that case, L'Association des Enseignantes et Enseignants Suppleants sought to represent a bargaining unit comprising the occasional teachers working in the respondent employer's six French language secondary schools established pursuant to Part XI of the Education Act, and the Board determined that this employee grouping constituted a unit of employees appropriate for collective bargaining. It is important to note, however, that the Board in that case did not find that a broader-based bargaining unit encompassing all occasional teachers would be inappropriate; moreover, it would appear that in other cases, involving other school boards, the Board has, for collective bargaining purposes, grouped occasional teaching in Part XI programs together with their professional peers. There is no evidence before us of any labour relations problems arising from either determination.
[emphasis added]
After reviewing the facts before it, the Board found that the unit applied for met the test set out in The Hospital for Sick Children, supra, and determined that an all-inclusive occasional teacher unit was appropriate. It is also apparent from the decision that there was only one Part XI occasional teacher in that case, and that the effect of excluding her would have been to deprive her of the opportunity for collective bargaining.
We read these cases together as standing for the proposition that either bargaining unit structure may be appropriate, and that much depends on the circumstances of the case. As a result, we find it useful to turn to the facts before us in considering the formula set out in Hospital for Sick Children, supra. In this case, while there are some differences between Part XI and other occasional teachers, it is evident that they have far more in common. Given the similarities in their work, their working conditions and their employment structure, it is difficult to say that they do not share a sufficiently coherent community of interest that they can bargain together. Such a conclusion would have to be based largely on the fact that they teach in different languages, a proposition which does not strike us as self-evident and one which is not supported by any evidence in this case. In fact, non-Part XI occasional teachers already include those who teach the subject of French in the English schools. In this regard, we draw as well on the experience of the parties with Bill 100 Part XI and non-Part XI teachers which indicates that bargaining together has apparently been a satisfactory arrangement for many years. We note too that Part XI occasional teachers were given notice of this application along with the other occasional teachers, and none have come forward to object to their inclusion in the bargaining unit.
It was not suggested that the inclusion of Part XI occasional teachers would cause serious labour relations problems for the respondent. Whatever inconveniences there may be will be more than balanced out by the advantage to the respondent of an unfragmented bargaining structure. This is particularly true where the administrative structure for Part XI schools is still developing and there is more flexibility than might otherwise be the case. We note as well that an all-inclusive occasional teacher unit is more consistent with the respondent's existing bargaining arrangements.
Finally, we are not convinced that we should mirror the bargaining structure set out in Bill 100 in this case. As the Board noted in Le Conseil Scolaire d'Ottawa, that legislation gives institutional recognition to factors such as religion, language, ethnicity and gender which are quite foreign to the private sector and other public sector labour relations and, we would add in this case, quite foreign to the Board's criteria for bargaining unit determinations. While we do not rule out the possibility that the general bargaining structure imposed on the education sector may be relevant to occasional teacher bargaining units, there was nothing in this case which would indicate that it should provide a blueprint for the bargaining unit before us.
As a result we conclude that the bargaining unit proposed by the applicant encompasses a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without causing serious labour relations problems for the respondent. In these circumstances, we find that the following constitutes a unit of employees appropriate for collective bargaining:
All occasional teachers of the respondent in the Counties of Frontenac, Lennox and Addington.
We therefore direct that the segregated ballots be intermingled with the other ballots and that all the ballots be counted.
This matter is referred to the Registrar.
CONCURRENCE OF BOARD MEMBER JAMES A. RONSON; September 14, 1988
On the basis of the evidence before us I concur with my colleagues in finding that the Part XI occasional teachers employed by the respondent do not have a separate and distinct community of interest from their English teaching counterparts.
However, I do have some reservations. The Board must remain cognizant of the turmoil that took place in various areas of the province, resulting in the enactment of Part XI of the Education Act. The wording of Part XI clearly indicates that the Legislature recognized the problems particular to the "English-French Fact" in this province.
It is interesting to note that the respondent employer does not use "licensed English language teachers" who are bilingual to teach in the French schools on an occasional basis, but rather has permission to use unlicensed laymen from the French community. To me this says a lot about the nature of the issue that we are dealing with here.
There is a strong temptation to let this group of teachers decide the issue themselves. This could be done easily by counting their segregated ballots obtained at the pre-hearing vote. But the evidence simply does not disclose any serious labour relations problems for the employer that would justify the Board departing from its usual approach to the issue.