Ontario Public School Teachers' Federation v. The Muskoka Board of Education, 1989 CanLII 3066

Ontario Public School Teachers' Federation v. The Muskoka Board of Education

[1989] OLRB Rep. July 775

2842-88-R; 2875-88-R Ontario Public School Teachers' Federation, Applicant v. The Muskoka Board of Education, Respondent v. Ontario Secondary School Teachers' Federation, Intervener; Ontario Public School Teachers' Federation, Applicant v. The Peel Board of Education, Respondent v. Ontario Secondary School Teachers' Federation, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. A. Correll and K. Davies.

APPEARANCES: Kathleen Martin and Duncan A. Jewell for the applicant; Michael McCleery for the respondent Muskoka Board of Education and Paul Young, Martin A. Fowler, Jim Gollert and Neil Gillies for the respondent Peel Board of Education; Maurice A. Green for the intervener.

DECISION OF THE BOARD; July 10, 1989

1. These are two applications for certification in which pre-hearing representation votes were conducted at the request of the applicant, which is a trade union as defined by clause l(l)(p) of the Labour Relations Act ("the Act"). In each case the applicant seeks, as it does in a number of other pending applications, to be certified as exclusive bargaining agent for a unit consisting of "all occasional teachers and supply instructors employed by the [respondent] in its elementary panel" in the geographic area served by the respondent, with the usual exclusion of "persons who, when they are employed as substitutes for other teachers, are teachers as defined in the School Boards and Teachers Collective Negotiations Act". The term "occasional teacher" has the meaning assigned to it by clause 1(1) ¶31 of the Education Act, and the term "supply instructor" means per­sons referred to in section 22(1) of Ontario Regulation 262 as amended by 0. Reg. 233/88. In each of these applications the respondent agrees that the unit sought is appropriate (as did the respon­dent in the Huron County Board of Education, decision referred to in the next paragraph).

2. In each of the decisions which directed that pre-hearing representation votes be con­ducted in these matters, the Board made these observations:

In an as yet unreported decision dated February 17, 1989 in The Huron County Board of Education, (Board File No. 2473-88-R), the Board noted that the proposition that "supply instructors" should be included in a unit of occasional teachers was one which the Board had not previously accepted:

3. Occasional teacher bargaining units have been the subject of considerable analysis by the Board: see, for example, The Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273 (the first case dealing with an occasional teachers application); The Board of Education for the City of York, [1985] OLRB Rep. May 767 (setting out the test for eligibility for "the count" and voters list); and The Sault Ste. Marie Board of Education, [1987] OLRB Rep. Nov. 1425 (dealing with the history of occasional teacher cases and the complexities arising from the coverage of some teachers under the School Boards and Teachers Collective Negotiations Act and other teachers under the Labour Relations Act). In Carleton Roman Catholic Separate School Board, [1987] OLRB Rep. Jan. 18, the Board had occasion to consider whether it should grant a unit comprised only of occasional teachers, as requested by the applicant, or one comprised of occasional teachers and supply instructors as requested by the respondent. It determined that the applicant's unit was appropriate and therefore did not actually decide whether a unit including both occasional teachers and supply instructors was appropriate, although it suggested that on the facts in that case "each group ha[d] a different and distinct community of interest".

The Board there directed that ballots cast by supply instructors in the pre-hearing representa­tion vote be segregated and not counted pending a hearing which it directed be scheduled fol­lowing the vote so that the parties to that application could adduce evidence and make submis­sions justifying their bargaining unit proposal.

After similarly directing that a vote be conducted in a voting constituency consisting of occasional teachers and supply instructors and that any ballots marked by supply and instructors be segre­gated and not counted, the earlier decisions in these two applications also made these observa­tions:

7. In the written submissions they file after receiving Notice of the Returning Officers Report, the applicant and respondent should elaborate on their joint assertion that occasional teachers and "supply instructors" share a sufficient community of interest to warrant including them in one unit. They might also address whether a "teacher/instructor" unit which includes more than occasional teachers should also include

a) those instructors (i.e. persons employed to teach who do not have the qua­lifications of a "teacher") whose employment by the school board is not restricted by section 22 of Regulation 262 (e.g., continuing education instructors);

b) those qualified teachers who, although not occasional teachers, will be excluded from the scope of the School Boards and Teachers Collective Negotiations Act when the Education Amendment Act, 1989 (Bill 70) comes into force on May 1, 1989 (i.e. qualified teachers employed as "continuing education instructor" within the meaning of the Act otherwise than on a contract in writing in a form prescribed by regulations under the Education Act.) if no affected party requests a hearing within the time specified in subsection 70(2) of the Board's Rules of Procedure, the panel to which this application is then referred will determine whether such a hearing is nevertheless necessary in light of the parties' post-vote written submis­sions and the outcome (if there has then been one) of the application in Board File 2473-88-R.

The request in the Huron County Board of Education application that supply instructors be included in a bargaining unit with occasional teachers was later abandoned, so the propriety of doing so was not considered in that application. These applications were listed for hearing to con­sider that question.

The Terms "Occasional Teacher" and "Supply Instructor"

3. The Education Act, R.S.O. 1980, c.129, as amended, defines "occasional teacher" in subsection 1(1) as follows:

4. "occasional teacher" means a teacher employed to teach as a substitute for a perma­nent, probationary or temporary teacher who has died during the school year or who is absent from his regular duties for a temporary period that is less than a school year and that does not extend beyond the end of a school year;

[emphasis added]

Subsection 1(1) of the Education Act defines the word "teacher" as follows:

66. "teacher" means a person who holds a valid certificate of qualification or a letter of standing as a teacher in an elementary or a secondary school in Ontario;

67. The term "supply instructor" seems first to have been used in the following passage from Carleton Roman Catholic Separate School Board, [1987] OLRB Rep. Jan. 18:

It is important not to lose sight of the fact that the word "teacher" has a narrow and technical definition in the statutory framework imposed on the labour relations between school boards and those who might fail within a common or dictionary definition of "teacher." In order to maintain the necessary distinctions in what follows, unless we expressly indicate otherwise the word "teacher" will describe only those who fall within the definition of "teacher" in subsection 1(1) of the Education Act. A person who is not a "teacher" but is employed by the school board to "teach" in the ordinary sense will be referred to as an "instructor." The phrase "occasional teacher" will be used to describe only those who fall within the definition of that term in subsection 1(1) of the Education Act. A person who does not fail within that definition but is employed to teach as a substitute for a teacher or instructor for a temporary period will be referred to as a "supply instructor."

3. A general theme of the Education Act and Regulations thereunder is that those who teach in schools must be "teachers" within the meaning of that Act. There are various limited exceptions to this general rule. By way of example, subsection 9(5) of Regulation 262 under the Education Act provides:

(5) A board may employ a person who is not a teacher to teach in a continuing educa­tion class a course that is not to be recognized for credit provided such person holds qualifications acceptable to the board for such employment.

(It is pursuant to this exception to the general rule that instructors dealt with in the Board of Education for the City of Toronto, [1986] OLRB Rep. June 900 and Metropolitan Separate School Board, [1986] OLRB Rep. Sept. 1259, could be employed to "teach.") The provision which permits the respondent to employ supply instructors to perform work which would ordi­narily be performed by occasional teachers is found in subsection 22(1) of Regulation 262 as amended by 0. Reg. 617/81, section 18:

22.-(1) Subject to subsection (2), a board may, in the case of an emergency, appoint an unqualified person to teach for not more than ten school days in a school year without obtaining a Letter of Permission under section 49 of Regulation 269 of Revised Regulations of Ontario, 1980.

Under the section of Regulation 269 referred to in the provision just quoted, the Minister of Education cannot grant a Letter of Permission authorizing employment of an unqualified person unless the position for which that person is to be employed has been advertised extensively and the school board seeking the letter establishes that no teacher has both applied for and accepted the position in question. Generally speaking, there are more teachers currently seeking full-time positions that there are positions to be filled.

Since that decision, section 22 of Ontario Regulation 262 has been revoked by section 11 of 0. Reg. 233/88, which substituted the following:

APPOINTMENT TO TEACH IN THE CASE OF AN EMERGENCY

22. (1) Where no teacher is available, a board may appoint, subject to section 22a, a person who is not a teacher or a temporary teacher.

(2) A person appointed under the subsection (1) shall be eighteen years of age or older and the holder of an Ontario secondary school diploma, a secondary school graduation diploma or a sec­ondary school honour graduation diploma.

(3) An appointment under this section is valid for ten school days commencing with the day on which the person is appointed. 0. Reg. 233/88, s. 11.

This Board's jurisdiction over "Teachers" and "Instructors"

5. The extent of our jurisdiction over labour relations between school boards and those they employ to "teach" (in the ordinary sense of that term) was described in the following portion of the decision in Carleton Roman Catholic Separate School Board, supra:

6. In matters involving the employment of persons to perform a teaching function, the legisla­ture has chosen to make statutorily defined qualifications determinative not only of the work which those persons may perform but also of the collective bargaining regime by which their employment may be governed. The legislature thought it important that collective bargaining for teachers be governed by legislation quite different from the Labour Relations Act. It is not apparent why teachers whose employment is "casual" were excluded from the collective bar­gaining regime governing teachers whose employment is "permanent." Except in a narrow range of employment situations (seasonal employment in the tobacco and canning industries) the characteristics of which are not shared by occasional teacher employment, this Board has consistently rejected the notion that "casual" workers should be excluded from units of "perma­nent" workers: Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713; Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371. The fact remains, however, that occasional teachers are not covered by Bill 100, and collective bar­gaining for them falls, by default, under the Labour Relations Act.

7. The application to occasional teachers of the Labour Relations Act and of the Board's juris­prudence has been influenced by the "casual" nature of their employment and their very strong affinity with their professional colleagues in Bill 100 units. The Board commented on this in Metropolitan Separate School Board, supra, at paragraph 25:

8. The first occasion on which this Board had to consider the applicability of its gen­eral practices, procedures and doctrines to a certification application affecting occa­sional teachers was in The Board of Education for the City of Toronto, [1983] OLRB Rep. Mar. 466. One of the issues in that case was whether the Board would apply its "30-30" rule to determine which persons were "employed" in the occasional teacher bargaining unit at relevant times. It concluded it would. The Board rejected that con­clusion and adopted a special test for occasional teachers in Board of Education for the City of York, [1985] OLRB Rep. May 767, which was the next decision to address that question. As will be apparent from that decision and from the passage quoted earlier from Board of Education for the Borough of Scarborough, supra, occasional teachers are not a group which would have been excluded from a unit of certified teachers if it had fallen to this Board to define such a unit in accordance with the prin­ciples it has developed over the years. This observation is not made as part of a cri­tique of Bill 100, but simply to highlight a fact peculiar to the "education industry", the ramifications of which have led the Board to adopt a different approach to matters involving occasional teachers. In the same vein, it is noteworthy that the Board's approach to appropriate composition of occasional teacher bargaining units has been so influenced by the peculiarities of Bill 100 as to have results which would not occur in another industry - such as the definition of units in terms of the language in which employees work, for example: see, Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090.

Since its decision in the Board of Education for the City of Toronto, [1983] OLRB Rep. March 466, the Board has dealt with dozens of applications for certification for units consisting solely of occasional teachers. It has consistently found such units to be appropriate for collective bargain­ing. The reasons for this were briefly stated in the Board's decision in Windsor Roman Catholic Separate School Board, [1986] OLRB Rep. July 1028 at paragraph 6:

It has been the Board's experience that until relatively recently school boards and unions that represent their non-teacher employees have not thought of occasional teachers as employees who might be the subject of or affected by collective bargaining under the Labour Relations Act. When they have been the subject of trade union organizing, they have been organized separately from other employee groups. Because of their affinity with "Bill 100" teachers, the Board has placed them in sepa­rate bargaining units -- if effect, "tag ends" to Bill 100 units

16. Certification applications with respect to instructors are even more recent phenomena than applications with respect to occasional teachers. Composition of units of instructors has been addressed in two decisions: The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900; and, Metropolitan Separate School Board, supra. In both cases, units of the respon­dents' occasional teachers had been the subject of certification before applications were brought with respect to instructors. Although those decisions did not speak directly to the situation of instructors who substitute for Bill 100 teachers, such persons were included with all other instructors in the unit established in Metropolitan Separate School Board. All instructors fail within the Labour Relations Act, and it would be inconsistent with this Board's jurisprudence to separate supply instructors from other instructors in composing bargaining units.

The Facts in These Applications

6. The applicant and the Peel Board of Education agree on the following facts:

7. The Peel Board of Education has a list of occasional teachers who are available as substitutes for permanent, probationary or temporary teachers, when such teachers are absent from their duties. When a permanent, proba­tionary or temporary teacher is absent, a principal or vice-principal of the school where the teacher is absent, contacts a dispatcher who arranges for an occasional teacher to substitute for them from the list of occasional teachers. If the dispatcher is unable to find an occasional teacher to substitute for the permanent, probationary or temporary teacher, then the principal or vice-principal is responsible for arranging coverage for the class taught by the per­manent, probationary or temporary teacher.

8. The Peel Board of Education has a policy which provides that supply instructors can be used in cases of emergency to substitute for permanent, probationary or temporary teachers. There is no definition of "emergency in this policy. However, in general, when the dispatcher is unable to find an occasional teacher to substitute for a permanent, probationary or temporary teacher who is absent, the principal will often rely on his or her own list of supply instructors to fill in for the absent teacher.

9. The occasional teacher or supply instructor perform the same work when they are employed as a substitute for a permanent, probationary to tempo­rary teacher. In particular, the occasional teacher or supply instructor will follow the lesson plan and perform any supervisory duties, such as yard duties or lunch room duties, as required.

10. The supervision of occasional teachers and supply instructors is performed by either the principal or vice-principal of the permanent, probationary or temporary teacher.

11. At the present time, the rate of pay of occasional teachers and supply instructors is set by Board policy. With respect to the rate, occasional teach­ers are paid $110.00 per day, whereas supply instructors are paid $65.00 per day.

12. With respect to their background, occasional teachers have an Ontario Teachers' Certificate, whereas supply instructors have varying degrees of education training, ranging from a teachers' certificate from another jurisdic­tion to an Ontario University degree to high school training.

13. The long-term interest of occasional teachers and supply instructors var­ies. With respect to occasional teachers, such teachers are often interested in gaining teaching experience with a long-term goal of actually becoming a permanent, probationary or temporary teacher or may simply want to earn extra money. In comparison, with respect to supply instructors, some supply instructors want to gain teaching experience since they are interested in obtaining their Ontario Teachers' Certificate at some future point in time, whereas others simply want to earn additional money.

The list referred to in paragraph 1 is maintained centrally and updated by the school board's Human Resources Department in June of each year pursuant to a standard practice. The creation and maintenance of the individual principals' lists of supply instructors referred to in paragraph 2 is not the subject of any standard practice. Persons on these lists only become the subject of a record in the school board's administrative offices if they come to be employed for any period of time, in which case the particulars of their employment will remain in the school board's computer for approximately eighteen months. Supply instructors are not used very often. The parties estimate that there are "thousands" of person-days of occasional teacher employment each year. In the same period, supply instructors would be employed for considerably less then one hundred person-days. With respect to the reference in paragraph 7 to supply instructors' interest in obtaining Ontario Teachers' Certificates, we were told that candidates with prior teaching (or, perhaps, "in­structing") experience are given favourable consideration by Colleges of Education in determining entrance to the educational programs which are a prerequisite to an Ontario Teachers' Certificate.

7. The applicant and the Muskoka Board of Education agreed on the following facts:

8. The Muskoka Board of Education has a list of occasional teachers and supply instructors who are available as substitutes for permanent, probation­ary or temporary teachers, when such teachers are absent from their duties. The list contains approximately 60 to 70 names of such persons, of which four of five are supply instructors.

9. When a substitute is required for a teacher, the principal of a school will initially seek to obtain the services of an occasional teacher. When an occa­sional teacher is unavailable, the principal will seek to obtain the services of

a supply instructor.

3. The occasional teacher of supply instructor perform the same work when they are employed as a substitute for a teacher. In particular, the occasional teacher or supply instructor will follow the lesson plan and perform any supervisory duties, such as yard duties or lunchroom duties, as required.

4. The supervision of occasional teachers and supply instructors is performed by either the principal or vice-principal of the teacher for which the occa­sional teachers or supply instructors are substituting.

5. At the present time, the rate of pay of occasional teachers and supply instructors is set by Board practice. Supply instructors are paid less than occasional teachers.

6. With respect to their background, occasional teachers have an Ontario Teachers Certificate, whereas supply instructors have a variety of education training, ranging from a teachers certificate from another jurisdiction to a University degree from Ontario to high school training.

7. The long-term interest of occasional teachers varies. It ranges from gain­ing teaching experience with the long-term goal of actually becoming a per­manent, probationary or temporary teacher to simply wanting to earn extra money. In comparison, the long-term interest of supply instructors also var­ies. Some supply instructors want to gain teaching experience since they are interested in obtaining their Ontario Teachers' Certificate at some future point in time. Others simply want to earn additional money or agree to assist a school which is in dire need of someone to be a substitute for a teacher.

The list referred to in paragraph 1 is updated on a regular basis. The positions in question are advertised annually. The frequency of use of occasional teachers versus supply instructors varies considerably among the fourteen elementary schools operated by the school board; schools in remote locations may have a very limited range of options when it becomes necessary to find the substitute for absent teacher.

8. The Ontario Secondary School Teachers' Federation ("OSSTF") was certified as bar­gaining agent for occasional teachers at both the Peel Board and the Muskoka Board. In both cases, after certification OSSTF sought and obtained voluntary recognition as representative of supply instructors, so that occasional teachers and supply instructors employed in the secondary panel are included in a single bargaining unit in both boards of education. The applicant advised us that it has been certified as exclusive bargaining agent for the occasional teachers of twenty-six school boards in Ontario. Since certification, twelve school boards have agreed to include supply instructors with the occasional teachers in a single unit covering the elementary panel.

Decision

9. The respondents' agreement that the units sought by the applicant are appropriate does not relieve us of our statutory obligation to make a finding in that regard.

10. There are a number of distinctions between the circumstances of these applications and those of the application dealt with in Carleton Roman Catholic Separate School Board, [1987] OLRB Rep. Jan. 18. The reliance of the applicant during organizing on the Board's findings in previous cases was a significant factor in that decision. By contrast with the facts in that case, the facts before us show a considerable evolution of collective bargaining practice toward inclusion of supply instructors with occasional teachers in a single unit. The regulatory restriction on employ­ment of anyone supply instructor for more than 10 days in a school year has been relaxed. The community of interest of occasional teachers is still different from that of supply instructors, but that does not mean that inclusion of both groups in one bargaining unit is inappropriate.

11. The Legislature still shows no inclination to include under one labour relations statute all those employed by school boards to "teach" or even all those "qualified teachers" so employed. Indeed, the latest amendments to the Education Act have excluded another category of qualified teacher from the ambit of the School Boards and Teachers Collective Negotiations Act. Because of the observations made in paragraph 7 of each of the earlier decisions in these applications, the applicant and respondents have considered whether those who "instruct" or "teach" otherwise than as substitutes for "regular" teachers and who fall under the Labour Relations Act for labour relations purposes should be included with occasional teachers and supply instructors in a single bargaining unit. They do not consider that desirable in either of these cases. If they are content, it does not seem inappropriate to us that occasional teachers should be in a different unit from those who do not function as substitutes for teachers.

12. It does not make sense to have supply instructors form a separate unit by themselves; in functional and practical terms it makes more sense to group them with occasional teachers than with a distinct unit of the other teachers and instructors who fall under the Labour Relations Act.

13. We find that the appropriate bargaining unit in Board File 2842-88-R consists of:

all occasional teachers and supply instructors employed by the Muskoka Board of Education in its elementary panel in the district of Muskoka 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.

We find that the appropriate bargaining unit in Board File 2875-88-R consists of:

all occasional teachers and supply instructors employed by the Peel Board of Education in its elementary panel in the Region of Peel 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.

In both cases, the term "occasional teacher" has the meaning assigned to it by section 1(1)(31) of the Education Act, and the term "supply instructor" means persons referred to in section 22(1) of Ontario Regulation 262 as amended by 0. Reg. 233/88.

14. In each of these applications, the applicant and respondent were able to agree on the list of persons who were "employees" in the bargaining unit on the application date. Accordingly, it was unnecessary for us to determine whether the test used in Board of Education for the City of York, [1985] OLRB Rep. May 767, should be applied in these applications to determine whether supply instructors (or occasional teachers, for that matter) who were not "at work" in the unit on the application date were nevertheless "employees" in that unit for the purposes of the Act. We leave open the question whether, having regard to the present provisions of section 22 of 0. Reg. 262, a supply instructor last at work more than ten days before the terminal date could or should be considered to be an "employee" as of that date.

15. Having regard to the agreements of the applicant and respondent in each application, we are satisfied that in each application not less than thirty-five per cent of those employed in the appropriate bargaining unit were members of the applicant at the time the application was made. On the taking of the pre-hearing representation votes directed by the Board, in each application more than fifty per cent of the ballots cast were cast in favour of the applicant. (That would remain so if the one segregated ballot in Board File 2875-88-R were now cast, however it may have been marked.)

16. A certificate shall issue to the applicant with respect to each of the bargaining units described in paragraph 13.

17. The Registrar shall destroy the ballots cast in the pre-hearing representation votes taken in these matters following the expiration of 30 days from the date of this decision unless a state­ment requesting that ballots not be destroyed is received by the Board from a party to one of these applications before the expiration of such 30-day period.