Board of Education for the City of Windsor
The Ontario Secondary School Teachers' Federation, Applicant
v. The Board of Education for the City of Windsor, Respondent
 OLRB Rep. July 815
File No. 0694-89-R
Ontario Labour Relations Board
BEFORE: R.O. MacDowell, Alternate Chair, and Board Members
J.A. Ronson and D.A. Patterson
July 13, 1990
BARGAINING UNIT / APPROPRIATENESS;
EMPLOYEES / LIST
Bargaining Unit - Certification - School Boards and Teachers Collective Negotiations Act - Union seeking to represent a group of instructors teaching particular courses while employer arguing appropriate unit should encompass all continuing education instructors, regardless of courses taught - Employer's description appropriate - Board also not departing from the usual "30/30" rule in determining who is an employee - Board not finding it appropriate to sub-divide the instructor group on the basis of courses taught or number of teaching hours
School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c. 464.
OLRB Cases Considered:
Toronto (Board of Education for the City of),  OLRB Rep. June 900.
APPEARANCES: Maurice A Green, Mike Walsh, Malcolm Buchanan
and Jean Wallis for the applicant; Raymond Colautti, V. Bill
Piliotis and James K. Fleming for the respondent.
DECISION OF THE BOARD
1 This is an application for certification. There is no dispute that the application is timely or that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act. What divides the parties is the description and composition of the unit of employees appropriate for collective bargaining. The employer proposes that the unit should consist of:
ALL CONTINUING EDUCATION instructors employed by the Respondent in Windsor, save and except administrator of continuing education, persons above the rank of administrator of continuing education and persons in bargaining units for which any trade union held bargaining rights as of June 13, 1989.
[emphasis added in uppercase text]
The union proposes a narrower bargaining unit framed as follows:
all continuing education instructors employed by the Respondent in the City of Windsor, IN ADULT BASIC EDUCATION AND ADULT ENGLISH AS A SECOND LANGUAGE COURSES, ["ESL"/"ABE"] save and except administrator of continuing education, persons above the rank of administrator of continuing education, and persons in bargaining units for which any trade union held bargaining rights as of June 13, 1989.
[emphasis added in uppercase text]
In effect, the union is seeking to represent a group of instructors teaching particular courses, while the employer maintains that the appropriate unit should encompass all continuing education instructors, regardless of the courses that they teach. The employer submits that to grant the union's proposed unit would further sub-divide an already fragmented and cumbersome bargaining structure which currently includes: two occasional teachers bargaining units, a professional employees unit, an office and clerical unit, a teaching assistance unit, a custodians and maintenance workers unit, five skilled trades units, and two bargaining units (involving three trade unions) established pursuant to the School Boards and Teachers Collective Negotiation Act (1975) ("Bill 100"). The union replies that the bargaining structure is already fragmented, and that in any event, the employees it seeks to represent have a sufficiently coherent community of interest to warrant grouping them together in their own bargaining unit - separate and distinct from any unit(s) which might subsequently be created for other continuing education instructors.
2 For the purpose of clarity, we should note at this point that, however the bargaining unit is defined, all of the employees fall within the scope of the Ontario Labour Relations Act. None of them are "teachers" covered by Bill 100. We might also note that none of these continuing education instructors requires an Ontario teaching certificate (OTC) in order to conduct their course - although the majority of instructors in the union's proposed unit do have an OTC. Finally, we should note that, in addition to the dispute concerning the DESCRIPTION of the bargaining unit, there were issues concerning the employee list, namely: how to treat instructors who are not actually at work on the application date, and whether the employer should be permitted to rectify and add names to the list originally filed in this matter [emphasis added in uppercase text].
3 In accordance with its usual practice when the bargaining unit description or composition is in dispute, the Board appointed a Labour Relations Officer to meet with the parties to inquire into the community of interest of the employees potentially affected by this application. As it turned out, the parties were able to reach an agreed statement of facts which was subsequently put before the Board. The Board then scheduled a hearing to give the parties the opportunity to make representations on the various matters in dispute.
4 We have considered the agreed facts and the parties' representations. We have also considered the various cases to which we were referred, in argument, and in particular: Board of Education for the City of Toronto,  OLRB Rep. June 900. In that case the Board reviewed its approach to bargaining unit determination at some length, and ultimately REJECTED the union's request for a bargaining unit of instructors teaching English as a second language in the School Board's Adult and continuing Education program [emphasis added in uppercase text]. In other words, in similar circumstances, the Board rejected a unit framed in a manner similar to the one the union urges upon us.
5 For the purpose of this case we adopt the reasoning of the Board in Board of Education for the City of Toronto, and reach the same conclusion, namely: that the unit of ABE and ESL instructors proposed by the applicant union is not APPROPRIATE for collective bargaining [emphasis added in uppercase text]. Rather, the appropriate bargaining unit is that proposed by the respondent and set out above. We do not think this case is distinguishable, nor do we think the amendments to the Education Act to which the union referred affect our jurisdiction or discretion to fashion a bargaining unit which, in our view, makes "industrial relations sense". We will give more detailed reasons for this conclusion if either party so requests in writing.
6 On the subsidiary issues, for reasons to be given in writing, if requested, the Board finds that there is no reason to depart from its usual "30/30 day rule of thumb" in determining who is an "employee" for the purpose of section 7 of the Act. Accordingly, in the case of instructors not actually at work on the date of the application, the employee list should include all those who worked in the 30 days immediately preceding the application date and in the 30 days immediately following the application date.
7 The Board is satisfied that the employer should be able to rectify its list so as to properly identify those individuals actually in the bargaining unit, even though this involves adding some names to the list initially filed in this matter. The request to amend the list was made prior to the release of the union's membership count, there is no question of "gerrymandering", and given the nature of the work force, it is entirely understandable that it might be difficult for the employer to compile an accurate list within the response time specified by the Board's Rules. Finally, having considered the nature of the instructors' work, their terms and conditions of employment, and the fact that they all teach non-credit courses for which no OTC is actually required, we have not considered it appropriate to sub-divide the instructor group on the basis of the number of courses taught or number of teaching hours. The appropriate unit, therefor, is that described in paragraph 1 above.
8 Having regard to the foregoing, the Board hereby reappoints a Labour Relations Officer to meet with the parties to assist them to settle the employee list on the basis of the findings and determinations set out above. Should it become necessary to do so, the matter will be relisted for hearing to consider any further issues which might arise.