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

[1994] OLRB Rep. December 1690

2428-94-R Ontario Secondary School Teachers' Federation, Applicant v. Ottawa Board of Education, Responding Party.

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. A. Correll and R. R. Montague.

APPEARANCES: Ian J. Fellows and Brian Babineau for the applicant; Steven L. Moate, E. Rand Linttell, Lorne Rachlis and Alan Wotherspoon for the responding party.

DECISION OF THE BOARD; December 9, 1994

1. This is an application for certification. By agreement of the parties this matter pro­ceeded directly to a hearing without the usual prior meeting with a Labour Relations Officer. This was the result, principally, of the identification by the parties of a substantial issue relating to the bargaining unit description which they felt could only be resolved through a Board determination. The applicant (hereinafter "OSSTF" or the "union") seeks a bargaining unit composed of "all Continuing Education Instructors employed by the respond[ing party] in the City of Ottawa in Adult Basic Education and Adult English as a Second Language courses...". The responding party (also referred to as the "employer" or the "OBE") contends that the appropriate unit should include all of its Continuing Education Instructors and should not be restricted to those instructors who teach Adult Basic Education or Adult English as a Second Language courses. There are other and less significant differences in the bargaining units proposed by the parties which are not mate­rial to our present purposes.

2. At the conclusion of the union's case the OBE indicated that it was prepared to call evi­dence in support of its case. The Board, however, directed the parties to make their submissions on the merits of the issue on the basis of the evidence before the Board and to address the question of whether there was any necessity for the Board to hear further evidence in regard to this issue. Having heard those submissions the Board reserved any further ruling in this matter and adjourned the proceedings. Having now had the opportunity to review the evidence and the parties' submis­sions, we are satisfied that there is no need to hear any further evidence in order to determine the bargaining unit issue at hand.

3. The evidence before us consists of a number of documents marked as exhibits as well as the testimony of Brenda Small and Sylvia Sheridan both of whom are currently employed as instructors in the OBE Continuing Education Department. Although there are clearly differences between the parties as to how the Board ought to characterize portions of that evidence~ it is fair to say that there is, ultimately, little dispute between the parties regarding the salient facts involved in this aspect of the case. In this context it is not necessary for us to set out those facts in intricate detail and we shall begin with an extremely basic presentation of those facts and shall refer~ as nec­essary, to further facts during the course of this decision. We should remark at the outset, how­ever, that both Ms. Small and Ms. Sheridan impressed us as candid and forthright witnesses who gave their evidence with a sincere desire to tell the truth. Their testimony and general demeanour reflect positively not only on the applicant on whose behalf they testified, but also on the OBE whose Continuing Education Department can only benefit from their past and continuing partici­pation.

4. The OBE Continuing Education Department provides a wide range of courses to its community. These include courses taught by "continuing education teachers" as that term is defined in section 1(1) of the Education Act. Those courses are commonly referred to as "credit courses". It is common ground that continuing education teachers are teachers and thus not sub­ject to the terms of the Labour Relations Act and are not to be included in the instant bargaining unit (while this proposition now appears settled, the history leading to that conclusion is one that neither these parties nor this Board is unfamiliar with: see Ottawa Board of Education, [1985] OLRB Rep. July 1139). Instructors, on the other hand, though they too provide instruction in con­tinuing education courses, are, under the same section of the Education Act, to be distinguished from teachers. The union now asks us to distinguish instructors of Adult Basic English ("ABE") and English as a Second Language ("ESL") (referred to jointly as "ABESL") from all other instructors in the continuing education department.

5. Apart from ABESL, instructors are employed in the OBE continuing education depart­ment to provide a wide variety of courses. Instruction in some 40 different languages is offered through the OBE 's International Languages courses (some of which were formerly called Heritage Language). Theses courses are generally taught for a few hours per week on a single day (usually Saturday). Extra Curricular Creative Arts courses offer instruction in a wide range of instrumental and vocal music (offered in private, semi-private or group classes), dance and visual arts. These courses are taught before or after regular school hours or during lunch hour. Students typically take courses on a weekly basis in classes which range from 1/2 to 1-1/2 hours in duration. Finally, the Speciality, Skills and Interest Program offers a wide and eclectic range of courses to the general community. Some thirty pages of the OBE's calendar of course offerings are devoted to listing and describing these courses. The courses fall under the general headings of computer training, busi­ness, finance, languages, creative expression, personal enrichment, well being and active living.

6. The union advances a three pronged argument in this case. First, it asserts, the ABESL instructors are different from all the others. Second, in what may really be a variant or extension of the first, it asserts that the stake of ABESL instructors in collective bargaining is different from the others. Finally, in what was identified as perhaps the most important factor, we were urged to con­clude that the history of what was described as autonomous employee organization in relation to these instructors should be accorded great significance. In advancing its argument the union relied upon previous decisions of the Board in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266; in a series of cases in which the Board found bargaining units consisting solely of registered and graduate nursing assistants to be appropriate: The Mississauga Hospital, [1991] OLRB Dec. 1380; South Muskoka Memorial Hospital, [1992] OLRB Rep. Apr. 520; and Englehart & District Hospi­tal Inc., [1993] OLRB Rep. Sept. 827 (but see Strathroy-Middlesex General Hospital, [1992] OLRB Rep. Oct. 1103 where the Board, on the facts before it in that case, concluded that such a bargain­ing unit was not appropriate); and in a series of recent Board decisions where the utility of the notion of "community of interest" has come under increasing critical scrutiny as a tool in bargain­ing unit determinations: The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85; Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347; and Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617. Most importantly, the union sought to distinguish the decisions of the Board in The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900 and The Board of Education for the City of Windsor, [1990] OLRB Rep. July 815 where bargaining units similar, if not identical, to the one proposed in the instant case were found not to be appropriate for collective bargaining.

7. There is no doubt that ABESL instructors constitute an identifiable group easily distin­guishable from all other continuing education instructors. And while there may have been some relatively infrequent examples of movement of instructors as between ABE and ESL courses, it would appear that any movement or overlap of assignments as between ABESL and other continu­ing education instructors is all but non-existent. It is also clear that the distinction between ABESL and other instructors may be seen in the nature of the subject matter instructed, its manner of delivery and even modes of curriculum development. We are not, however, persuaded that these differences emerge from anything ultimately more significant (for our purposes) than a difference in the subject matter being taught or, to adhere to the perhaps less elegant language of the Education Act, instructed. In this respect we note that while the content of various courses may differ dramatically, there remain certain unavoidably essential characteristics associated with the general process of instruction, preparation, curriculum development, and evaluation the parame­ters of which will, of course, vary from course to course. There was an undercurrent of what might be described as academic elitism associated with portions of the union's position. One can perhaps appreciate or at least understand the nature of those sentiments in the context of a continuing edu­cation program which includes courses which may be characterized as more traditionally academic in nature with general interest courses which may, at least by comparison, appear to be more frivo­lous in nature. Even if this distinction were a useful one for our purposes, it does not lead inexor­ably to the conclusion that a bargaining unit restricted to ABESL instructors is appropriate. There are numerous other courses offered by OBE instructors which would appear to make claims of aca­demic integrity similar to those which might be made by ABESL courses - for example, courses such as those offered in a wide variety of languages offered at beginner, intermediate and advanced levels.

8. In what is a related submission, the union argued that the interests of ABESL instruc­tors in collective bargaining differ from those of other instructors. This argument was related to the evidence of Ms. Small regarding her view of herself and her ABESL colleagues as professionals for whom ABESL instruction constitutes a career; a state of affairs the union sought to distinguish from other instructors. Reliance was also placed on Ms. Small's evidence suggesting that there was a greater tendency on the part of ABESL instructors to work a greater number of hours as com­pared with, in particular, instructors providing general interest courses. There are several difficul­ties associated with this line of argument. First, it is not at all apparent to us that the evidence sup­ports the argument. It would be imprudent for the Board to draw firm conclusions about the characteristics of various groups of instructors based on the evidence before us. That evidence sug­gests that there is a significant number of ABESL instructors who teach less than 15 hours per week. We are hard pressed to infer from that fact alone that those individuals do not view them­selves as "career" ABESL instructors or, alternatively, that they do, but have merely been unable to secure the number of working hours they might like to have. Similarly, the fact that an individ­ual may teach only a single language or creative arts course tells us very little about their personal notions of professionalism or career. There is an irony here which cannot escape comment. There was an implicit criticism which, from time to time bubbled to the surface of the union's case. It is suggested that, compared to their co-workers who teach in elementary and secondary schools, ABESL instructors have been historically shortchanged. It is suggested that part of the rationale for that state of affairs stems from attitudes about women in the workforce working for "pin money". These criticisms may be well founded but are clearly beyond the scope of our inquiry. The irony, however, lies in a characterization of other instructors which in many respects resem­bles the impugned characterization of ABESL instructors.

9. In any event and more importantly, even assuming the limited evidence on the point persuaded us (which, frankly, it does not) that there are indeed generalized and significant differ­ences in the attitudes of ABESL, as opposed to all other, instructors regarding professionalism and career issues, we are not satisfied that such a difference would warrant excluding all other instruc­tors from an ABESL bargaining unit. The rationale for such an exclusion is, of course, premised on the assertion that there is no community of interest as between ABESL and other instructors.

In this regard we refer the parties to the following observation of the Board at paragraph 27 of the Burns International case (cited above):

…..nor does the term "community of interest" usually provide much guidance to what is an appropriate bargaining unit. All employees share a "community of interest" by virtue of work­ing for the same employer, and "real life collective bargaining" seems to be able to accommo­date groups with quite different duties and conditions, who one might still argue had a separate "community of interest".

10. The union, however, does not base its case exclusively on a community of interest argu­ment. The mere fact that a unit of all instructors might be an appropriate unit does not, despite the generally greater attractiveness of broader based bargaining, automatically lead to the conclusion that a smaller unit such as the one proposed by the applicant is necessarily not an alternative appropriate unit. Rather the Board will focus on the test articulated in the Hospital for Sick Children case (cited above) at paragraph 23:

…..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.

11. It is the Board's traditional concern about undue fragmentation as well as its general aversion or at least caution in respect of classification based bargaining (in a non craft setting) which has been and continues to be problematic in relation to the bargaining unit currently sought by the applicant. In The Board of Education for the City of Toronto (cited above) a bargaining unit restricted to ESL instructors was rejected by the Board. Relying on that decision, the Board, a few years later, rejected this applicant's claim for a bargaining unit limited to ABE and ESL instructors in The Board of Education for the City of Windsor (cited above).

12. The union did not argue that those cases were wrongly decided nor did it ask us to depart from the principles set out in those cases. We are simply not persuaded that the facts of the instant case are so significantly different from those the Board considered in the Toronto and Windsor cases so as to warrant a conclusion different from that the Board arrived at in those cases. In this context we are simply not persuaded that the level of what OSSTF referred to as autono­mous employee organization within the group of ABESL instructors has the significance claimed by the union. The facts surrounding this aspect of the case are readily distinguishable from those set out in The Mississauga Hospital (cited above). It is conceded that, notwithstanding the efforts of Ms. Small, Ms. Sheridan and others who have been active in a relatively informal (it was not suggested that this group is or was a trade union within the meaning of the Act) group ("TA­BESL") of ABESL instructors, the employer for some 10 years has not distinguished between ABESL and other instructors with respect to essential terms and conditions of employment. The mere fact that the employer has agreed to deal with TABESL officials as representatives of ABESL instructors does not, in the instant case, assist us in concluding that a bargaining unit restricted to ABESL instructors would be appropriate. The evidence discloses that the employer, unlike The Mississauga Hospital, has consistently treated all instructors as a grouping for the pur­poses of terms and conditions of employment. The employer may, as a matter of courtesy or con­venience, have allowed TABESL to provide representation for ABESL instructors; the evidence discloses that representatives of other instructors (although perhaps not chosen quite so formally or democratically) have also participated in discussions with the employer. None of this, however, changes the uncontroverted fact that the OBE has not distinguished as between different types of instructors with respect to terms and conditions of employment. In that context, the union's evi­dence in this regard does not advance its case.

13. In view of all of the above, the Board is not persuaded that a bargaining unit restricted to ABESL instructors is an appropriate bargaining unit. We are, however, content that unit which included all continuing education instructors would be an appropriate one. In the circumstances, including the fact that there is another, admittedly less significant, issue related to the bargaining unit description which was not argued before us, we shall not make any further or final ruling with respect to the bargaining unit issue at this stage of the proceedings.

14. Further, having regard to the discussions with the parties during the course of the hear­ing, the parties are hereby directed to meet with a Labour Relations Officer to complete the usual report prepared in certification cases. That report will set out, among other things, the parties' agreement (or their positions in the event there is no agreement) with respect to the list(s) of employees for the purposes of the count.