[1989] OLRB Rep. June 575
0276-89-R Association des enseignantes et des enseignants suppl6ants d'Ottawa-Carleton élémentaire séparéé, Applicant v. Conseil scolaire de langue française d'Ottawa-Carleton (section catholique), Respondent
BEFORE: Patricia Hughes, Vice-Chair, and Board Members M. Rozenberg and H. Peacock.
DECISION OF THE BOARD; June 15, 1989, as amended July 10, 1989
This is an application for certification in which the applicant has requested a pre-hearing representation vote.
In accordance with its usual practice in pre-hearing vote applications, the Board directed the appointment of a Labour Relations Officer to meet with the parties for the purposes of examining their records to obtain the information necessary to the Board's determination of whether to direct a vote, of obtaining the parties' positions on the description and composition of an appropriate bargaining unit and the voting constituency, of conferring with the parties with respect to vote arrangements and of recording the parties' positions with their reasons for those positions on all matters in dispute and any other matter arising out of the application. That meeting took place on May 17, 1989.
Under Part XI of the Education Act, R.S.O. 1980, c. 129 as am., the Legislature provided for education in the French language under the auspices of English-language school boards. This Board has, on several occasions, considered whether the occasional teachers teaching in schools or classes established under Part XI ("Part XI teachers") should be included in a unit composed of other occasional teachers: see, for example, Le Conseil Scolaire d'Ottawa, [1985] OLRB Rep. July 1090, in which l'Association des Enseignantes et Enseignants Suppl6ants was certified to represent occasional teachers in secondary schools where French is the language of instruction, that is, for Part XI teachers teaching in Part XI schools run by the Ottawa Board of Education in the City of Ottawa; Ottawa Board of Education (File No. 2845-87-R, October 11, 1988), in which the parties agreed to exclude Part XI secondary school occasional teachers; and Carleton Roman Catholic Separate School Board, [1987] OLRB Rep. Jan. 18, in which Part XI occasional teachers were excluded from the bargaining unit. The Legislature has now established a distinct school board which will be responsible for the provision of French-language education. The Ottawa-Carleton French-Language School Board Act, 1988, S.O. 1988, c. 47 ("Bill 109"), which came into effect on June 29, 1988 (except for two sections not here relevant which were deemed to have come into effect on April 30, 1988), creates The Ottawa-Carleton French-language School Board ("the French-language Board") and gives it responsibility for the provision of French-language education in the City of Ottawa and the surrounding townships, cities and villages specified therein (that is, the Regional Municipality of Ottawa-Carleton). Since January 1, 1989, the English-language boards in the Ottawa-Carleton area, namely the Ottawa Board of Education ("the Ottawa Board"), the Carleton Board of Education ("the Carleton Board"), the Ottawa Roman Catholic Separate School Board ("the Ottawa Separate Board") and the Carleton Roman Catholic Separate School Board ("the Carleton Separate Board"), have not been subject to Part XI of the Education Act, by virtue of subsection 1(5) of Bill 109.
In this application, the applicant, l'Association des enseignantes et enseignants suppléants d'Ottawa-Carleton élémentaire séparée ("l'Association"), seeks to be certified to represent occasional teachers and "part-time supply instructors" employed by the respondent, Conseil scolaire de langue française d'Ottawa-Carleton (section catholique) ("le Conseil de langue française, catholique"). (In referring to the provisions of Bill 109, the English language "French-language Board" will be used; in referring to the respondent, the French language "Conseil de langue française, catholique" will be used.) Le Conseil de langue française, catholique maintains that it is not the employer of the persons whom l'Association seeks to represent and will not be the employer until September 1, 1989. In addition to the major question of whether l'Association has named the appropriate respondent, this application raises several other issues: l'Association's status as a "trade union"; the description of the bargaining unit and the voting constituency; the applicability of the lists of employees supplied by the respondent; the timeliness of the application; and who should receive notice of the application. None of these issues prevents our holding a pre-hearing representation vote; all of them can be addressed by the parties at a hearing scheduled after the vote has been taken.
Under the Ontario Labour Relations Act ("the Act"), only trade unions within the meaning of clause l(l)(p) of the Act may be certified to represent employees. By letter dated May 4, 1989, the Registrar informed the applicant that it had not been found in any previous proceeding to be a trade union within the meaning of clause l(l)(p) of the Act; nor had an organization with a "similar" name been found to be a trade union. The letter invites the applicant to advise the Registrar's office if the information is incorrect. L'Association does not appear to have done so and will therefore be required at the hearing scheduled after the taking of the vote to adduce evidence which will satisfy the Board that it is in fact a trade union within the meaning of clause l(l)(p) of the Act. Le Conseil de langue française, catholique raised no allegation relevant to l'Association's being found to be a trade union.
The remainder of the issues in this application can only be fully understood in the context of the application of Bill 109 and the relationship and interplay among Bill 109, the Education Act, the School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c. 464 ("Bill 100") and the Labour Relations Act.
The identity of the respondent raises two issues: the first is whether le Conseil de langue française, catholique is the employer of the employees for whom certification is sought or, put another way, whether the application is, as the respondent claims, premature; the second issue, which we raise, is whether "le Conseil de langue française, catholique" is the employer in this context or whether "le Conseil de langue française", without specification of the sector "catholique", is the employer (in this regard, the parties appear to agree that the employer is or would be the sector "catholique", but disagree on how that should be reflected in the respondent's name). On the second issue, by analogy, the Board does not certify a trade union to represent employees of a division of a corporation, but rather names the corporation as the employer and limits the bargaining unit to employees in that division: see Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815. In this context, the issue is whether the French-language Board or a sector of the French-language Board (see para. 8 below) is the employer.
The French-language Board has been in existence since December 1, 1988 and has had "the powers" of a [school] board under the Education Act and the obligation to provide school instruction in "French-language instructional units" (that is, "a class, group of classes or school in which French is the language of instruction") since January 1, 1989. The French-language Board is composed of the "public sector", the Roman Catholic sector" and the "full board". It should be understood that the "full board" is an entity distinct from "the French-language Board" and is comprised of the two sectors.
The public sector and the Roman Catholic sector is each responsible for providing education in both elementary and secondary schools, but in doing so they are "govern[ing] for the French-language Board". Section 26 of Bill 109 specifically states that "[s]ubject to this Act, the Roman Catholic sector has all the powers and shall perform all the duties that the Education Act confers or imposes on a secondary school board" (the powers and duties of boards of education are set out in Part VI of the Education Act) and there are various provisions which state that provisions of the Education Act apply to the full board and each of the sectors "as if they were boards". Each sector is given exclusive jurisdiction over a variety of responsibilities and concerns, including the determination of programmes to be offered in its schools, investing and borrowing money and the terms and conditions of employment of teachers and other employees and specifically, under paragraph 4(1)20, "Collective bargaining in respect of teachers and other employees". Collective bargaining is one of the matters over which the sectors may transfer their jurisdiction to the full board; by operation of subsection 4(6), however, the jurisdiction is transferred back at the end of the term of office of the members of the sector who had transferred it to the full board and it may be transferred back prior to that time. Each sector also "shall exercise exclusive jurisdiction on behalf of the French-language Board in respect of the acquisition of real or personal property that is to be used by that sector". The full board has exclusive jurisdiction over specified matters such as "maintaining buildings and premises and furniture and equipment for the French-language Board", providing insurance and collective bargaining and the terms and conditions of employment of employees engaged in matters within the full board's jurisdiction. By subsections 3(6) and (7) a decision of the members of a sector or of the full board with regard to any power, duty or right assigned to the sector or full board is a decision of the French-language Board.
Bill 109 envisions the transfer of both personnel and property (real and personal) from English-language boards to the French-language Board. With respect to the latter, section 59 provides for the transfer of schools which had been used for French-language instruction by the English-language boards. Those sites transferred by the Ottawa Board and by the Carleton Board are to be allocated to the public sector and those transferred by the Ottawa Separate Board and by the Carleton Separate Board are to be allocated to the Roman Catholic sector (although shifts in enrolment may result in a re-allocation by resolutions of both the sectors). Transferred assets and reserves are allocated in the same way, with each sector allocating a portion of such assets to the full board.
The transfer of teachers and other employees or their services is dealt with in Part XIII of Bill 109. There are four ways in which the French-language Board will acquire from the English-language boards the means of carrying out its mandate under Bill 109.
English-language boards "shall" assign the "services" of certain employees to the French-language Board from January 1, 1989 until August 31, 1989 or until an earlier date agreed upon by the boards. The French-language Board pays for such services. There appears to be no provision for a transfer of the contracts governing the employment relationship of any such employees to the French-language Board. This assignment is consistent with the cessation of the English-language boards' obligations under Part XI of the Education Act at the same time the French-language Board undertakes the responsibilities of providing instruction in the French-language and the period of the assignment is consistent with the provisions for transferring employees themselves, rather than their services, which can occur in three ways.
The first way in which employees are to be transferred is through "designation" under section 63 of Bill 109 ("the designated employees"). These are employees who are assigned or recruited by the English-language boards exclusively for work in relation to French-language instructional units as of December 1, 1988. The contracts covering designated employees "are to be transferred to and assumed by the French-language Board effective the 1st day of September, 1989".
Bill 109 also contemplates that there will be employees of the English-language boards whose services will not longer be required by those boards after the French-language Board has been formed and that the latter will need to fill positions. The public sector is to enter into an agreement with each (or both) of the Ottawa Board and the Carleton Board and the Roman Catholic sector is to enter into an agreement with each (or both) of the Ottawa Separate Board and the Carleton Separate Board by which, among other things, they are to select the employees to be transferred under section 64 of Bill 109 ("the selected employees") in 1989, 1990 and 1991, effective September 1st of the relevant year. The contracts covering selected employees will be "transferred to and assumed by the French-language Board" effective the September 1st following the date of the agreement "or such earlier date as all of the boards may agree upon
Finally, employees for whom there is no position in either the English-language boards or the French-language Board (identified through the agreements referred to in paragraph 14 above) are by virtue of section 65 of Bill 109 entitled to training assistance and to employment during training and afterwards by the relevant sector or English-language Board. The contracts of the employees for whom the French-language Board is responsible under section 65 are to be "transferred and assumed by the French-language Board" effective the September 1st following the date of the agreement "or such earlier date as the parties to the agreement may agree upon".
Regardless of the manner in which employees and their contracts are to be transferred from English-language boards to the French-language Board, the contracts of employees transferred from the Ottawa Board or the Carleton Board are under the jurisdiction of the public sector and the contracts of employees transferred from the Ottawa Separate Board or the Carleton Separate Board are under the jurisdiction of the Roman Catholic sector.
Section 67 of Bill 109 in part states that the terms of employment of employees transferred in 1989 who were working in a building transferred to the French-language Board will be determined under the collective agreement that applies to them immediately before the transfer until the French-language Board reaches a new collective agreement. The terms of employment of transferred employees who were not working in a building that was transferred and who were covered by a different collective agreement than employees having substantially the same job description who were working in a transferred building will be determined under the collective agreement covering employees with substantially the same job description transferred from the same English-language board transferring the building in which the employees are to work. The French-language Board will determine which collective agreement applies if the employees are to work in a building which had not been transferred from an English-language board.
Finally with regard to the transfer of employees, section 75 of Bill 109 provides that for purposes of section 63 of the Labour Relations Act, employees transferred from the English-çprovision, however, applies only to "employees who are not teachers".
That brings us to the meaning of "teacher" under Bill 109. Bill 109 does not specifically define "teacher", but appears to adopt the meaning under the Education Act, that is, "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". The Education Act also specifically defines various kinds of teachers, including an occasional teacher, all of whom (except a "temporary teacher" who is "a person employed to teach under the authority of a letter of permission" [emphasis added]) are defined by reference to being "a teacher". The same categories appear to apply under Bill 109.
Labour relations with respect to teachers is generally dealt with by Bill 100 and not by the Labour Relations Act since clause 2(f) of the Act excludes "a teacher as defined in the School Boards and Teachers Collective Negotiations Act"; however, the labour relations of occasional teachers are not governed by Bill 100 but by the Labour Relations Act since the definition of teacher in Bill 100 does not encompass occasional teachers: see The Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273. This division of jurisdiction appears to continue under Bill 109. We note in this regard that le Conseil de langue française, catholique does not challenge the Board's jurisdiction to entertain this application for occasional teachers (nor, it appears, does it challenge our jurisdiction over supply instructors, although it does object to their inclusion in a bargaining unit with occasional teachers).
For the purposes of Bill 100, section 74 of Bill 109 deems the Roman Catholic sector to be a Roman Catholic separate school board in respect of its elementary schools and a secondary school board in respect of its secondary schools; the public sector is deemed to be a public board in respect of its elementary schools and a secondary school board in respect of its secondary schools. Bill 100 specifies the "affiliates" of the Ontario Teachers' Federation which are to represent teachers in bargaining and Bill 109 deems certain "branch affiliates" to exist for the purposes of Bill 100 and each of those bodies is deemed to have given notice of desire to negotiate under section 9 of Bill 100. Insofar as occasional teachers are not subject to Bill 100, the relevance of section 74 of Bill 109 for occasional teachers is not clear.
The scheme of Bill 109, the timing and manner of its implementation, the circumstances under which it treats the sectors as "school boards", the jurisdiction granted to the sectors (and the full board) and the relationship between the sectors and the French-language Board are all relevant both to the identity of the employer (the French-language Board or a sector) and to whether the named respondent is the employer for the purposes of this application. Accordingly, the parties will be required to address these aspects of Bill 109 in order to resolve those particular issues. In addition, the applicant has named the respondent as "Conseil scolaire de langue française d'Ottawa-Carleton (section catholique)", while the respondent has indicated its correct name is "La Section catholique du Conseil scolaire de langue française d'Ottawa-Carleton"; to the extent that that difference raises a distinct issue, it should also be addressed by the parties.
The next group of issues concern the description and composition of the bargaining unit and voting constituency. L'Association seeks to be certified to represent a unit of
all occasional teachers and part-time supply instructors employed by the respondent in its schools situated in the Regional Municipality of Ottawa-Carleton save and except those employees in any bargaining unit for which a trade union held bargaining rights as of April 25, 1989.
The position of Le Conseil de langue française, catholique, as articulated at the Officer's meeting, is that there be two bargaining units: one for occasional teachers "employed by the elementary panel of the respondent" and one for occasional teachers "employed by the secondary panel of the respondent". L'Association contends that the respondent does not have an elementary or secondary panel. In the public school system, the Board has found as appropriate bargaining units of occasional teachers differentiated by level of school: The Board of Education for the City of Toronto, supra; The Peel Board of Education, [1987] OLRB Rep. Dec. 1600. In the separate school system, it has found as appropriate units undifferentiated in that way: Carleton Roman Catholic Separate School Board, supra. The parties will have an opportunity to address the number of bargaining units (and should refer, among other relevant factors, to the effect of sections 26 and 74 of Bill 109). For purposes of determining the voting constituency, we shall apply the usual principle in pre-hearing representation vote applications of assuming, without deciding, that the applicant's position is correct: there will be a single voting constituency with no reference to an elementary or a secondary panel.
Le Conseil de langue fran~aise, catholique objects to the inclusion of part-time supply instructors in the same unit as occasional teachers on the basis that they do not share a community of interest. The Board has found that it has jurisdiction over supply-instructors: Metropolitan Separate School Board, [1986] OLRB Rep. Sept. 1259. But it has not yet found a unit composed of both occasional teachers and supply instructors to be an appropriate bargaining unit: The Huron Board of Education (Board File No. 2473-88-R, February 17, 1989). The question is currently before the Board: Muskoka Board of Education (Board File No. 2842-88-R, March 8, 1989). Again, this is a question on which the parties will have an opportunity to present evidence and make submissions. At that time, they should also address the meaning of "part-time supply instructors"; the Officer's report gives no indication of what the applicant means by that term. For the purposes of the voting constituency, supply instructors will be included. The Board's usual clarity note with respect to the supply instructors will be added, since we have been given no reason to believe it does not apply to the "part-time supply instructors" referred to by the applicant.
Both the applicant and the respondent have employed the same exclusionary language which makes reference to bargaining rights held by other trade unions as of the application date. Following The Sault Ste. Marie Board of Education, [1987] OLRB Rep. Nov. 1425, the Board no longer uses that exclusionary language in occasional teacher bargaining unit descriptions, but rather language which reflects the scheme of Bill 100 and the interplay between it and the Labour Relations Act. There is no indication in the Officer's report why the parties have used the language they have and in particular, whether it relates to the way in which Bill 109 transfers employees and contracts from the English-language boards to the French-language Board and the continued impact of current collective agreements. There is no indication why the usual language is not applicable in this case. Accordingly, we shall describe the voting constituency using the Board's "usual" exclusionary language and the parties may explain later why their language is more appropriate.
Therefore, the Board determines that the voting constituency will be
all occasional teachers and part-time supply instructors employed by the respondent in its schools situated in the Regional Municipality of Ottawa-Carleton, 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: 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, section 18.
Under subsection 9(2) of the Act, the Board must determine whether the applicant has the appearance of support of not less than 35 per cent of the employees in the voting constituency at the time the application was made. It is this aspect of this application which gives us the greatest difficulty in determining whether to direct a pre-hearing representation vote or not. The other issues which we have considered above do not need to be resolved before the taking of a vote; they can all be addressed at a hearing held after the vote has been taken. But the Board cannot direct a vote if it is not satisfied that the requirement of subsection 9(2) of the Act has been met (the "appearance" of 35% support) even if it is also possible that the resolution of the matters in dispute regarding the bargaining unit will result in the application's being dismissed without the vote's being counted because the applicant does not actually have 35% in the bargaining unit determined by the Board to be appropriate.
The respondent claims that it is not the employer of the persons who are the subject of this application and contends further that it has no records with respect to those persons. It says that the Ottawa Separate Board, the Catholic Separate Board and the Carleton Board are the employers (in this respect, we observe that we are not concerned with whether these persons are the employers, but only with whether the respondent is the employer) and it has obtained lists of occasional teachers from the Ottawa Separate Board and the Carleton Separate Board. These lists do not purport to be lists of employees who have in any way been transferred to the French-language Board or are to be transferred, but seem only to be lists of persons who were on the occasional teachers' lists for May 1989 in the case of the Carleton Separate School Board and for March 1989 in the case of the Ottawa Separate School Board for teaching in the French-language schools. The parties have treated these lists as the employee lists and "the count" has been determined based on those lists. The applicant seeks to add certain persons to those lists and also challenges the inclusion in the bargaining unit of certain persons on the lists.
The respondent states that by virtue of the Education Amendment Act, 1986, S.O. 1986, c. 21, as am. ("Bill 30") and section 73 of Bill 109, Garneau Secondary School was transferred from the Carleton Board to the Roman Catholic sector of the French-language Board. Section 73 of Bill 109 incorporates the provisions of Bill 30 which provide for the designation of employees and property to be transferred to Roman Catholic separate school boards in consequence of their assumption of the duties of secondary school boards funded by public funding. The Roman Catholic sector is deemed by Bill 109 to begin to perform the duties of a secondary school board on January 1, 1989. Under Bill 30, the contracts of employees designated to be transferred from the public to the separate system are transferred and assumed by the Roman Catholic sector effective September 1st following the date of the designation. The respondent contends that these employees ("Bill 30 employees") are covered by a collective agreement between the Ontario Secondary School Teachers Federation ("O.S.S.T.F.") and the Carleton Board, that the application is therefore untimely and that O.S.S.T.F. should be given notice of this application. The Officer's report indicates that the respondent contends that the Carleton Board is one of the three employers of the persons who are the subject of this application, but it is not clear from the report whether the respondent considers itself or the Carleton Board to be the employer of these particular employees. In any case, the applicant takes the position that the respondent is not the employer of these employees and that the application is timely. That is yet another issue which the parties can address at a later time.
We do not have any lists of the Bill 30 employees. Regardless of whether the lists provided by the respondent are the basis for the calculation or whether it is based on the lists as amended by the applicant's challenges, the applicant has the requisite appearance of support among the employees in the voting constituency on the application date. We do not know if it would enjoy the requisite appearance of support if the Bill 30 employees were included for the count. It is not necessary that the applicant have the appearance of not less than thirty-five per cent support of the employees in the voting constituency on all possible combinations, only that it have it on some combination. It may be, however, that we find at a later stage that with the inclusion of the Bill 30 employees, the applicant would not have met the requirement. Should that occur, the application would be dismissed without the ballots' being counted. On the question of notice to the employees, notice will be posted in the respondent's schools. Normally, because occasional teachers have no attachment to a specific school, we mail them notice. In this case, the parties will run the risk that Bill 30 employees will seek to re-open these proceedings after they have apparently been completed. That is a risk that flows from a failure to provide the Board with the information necessary to satisfy all the requirements of the process.
Assuming at this stage that the Bill 30 employees do not need to be added to the list, it appears to the Board on an examination of the records provided by the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made.
Accordingly, we hereby direct the taking of a pre-hearing representation vote in this application for certification.
Voters will be asked whether or not they wish to be represented by the applicant in their employment relations with the respondent.
All employees of the respondent in the voting constituency on May 15, 1989, who are also in the voting constituency on the date the vote is taken will be eligible to vote.
The issues raised by the parties and by Bill 109 give rise to whether there are other entities which should be given notice of these proceedings, specifically any trade union which has been certified to represent Part XI occasional teachers who are the subject of this application or which has been voluntarily recognized by one of the English-language boards to represent Part XI occasional teachers. Apart from O.S.S.T.F., the parties have not named any entity which should receive notice. Again, they run the risk of having this matter re-opened should some entity subsequently be found to have an interest after the proceedings have been concluded. The parties are hereby directed to notify the Board of any other entity which should receive notice of this application.
We hereby direct that the Ontario Secondary School Teachers Federation be served with notice of this application, sent a copy of this decision and notified of the hearing to be scheduled after the taking of the vote.
We also note that the applications for membership are in the name of "L'Association des enseignantes et des enseignants suppléants" and that "Ottawa-Carleton" appears in the middle of the next line. The application has been filed by "Association des enseignantes et des enseignants suppléants d'Ottawa-Carleton élémentaire s6par6e". Any issue arising out of the difference in names can be addressed at the hearing after the vote. The membership evidence filed by the applicant contains the following omissions: on two applications, there is no date indicated; on three, no year appears; one is dated 1983 and another 1987; on two applications there is no name on the applicant portion which indicates who paid the $1.00 and on one there is no collector. The Form 9 declarant will be required to satisfy the Board that he had made the inquiries necessary to sign the Form 9.
This matter is referred to the Registrar to make vote arrangements and to schedule a hearing for a date after the date fixed for filing a statement of desire to make representations to permit the parties to adduce evidence and/or make submissions on the following issues: the status of l'Association as a trade union: whether le Conseil de langue française, catholique is the employer of the persons who are the subject of this application and the proper name of the respondent; the description and composition of an appropriate bargaining unit; the status of the Bill 30 employees; the timeliness of the application; the Form 9 Declaration and the membership evidence; and any other matter arising out of the application.