D. A. Patterson

The employer applied under section 5(2) of the transitional provisions of the Labour Relations Act, 1995 for a declaration that a combined full-time and part-time bargaining unit was no longer appropriate.

The union argued that the Board should apply its modern approach to community of interest, focusing on whether the combined unit caused serious labour relations problems.

The Board rejected this approach, finding that the transitional provisions required a traditional community of interest analysis.

Given the significant differences in terms and conditions of employment and the traditional nature of the part-time student workforce, the Board found no community of interest and declared the combined unit inappropriate.

The applicant union applied for certification.

The employer and the incumbent union argued the application was untimely under section 7(6) of the Labour Relations Act, 1995, because the collective agreement had automatically renewed.

The employer also argued its labour relations were governed by the Canada Labour Code, not provincial legislation.

The Board deferred holding a representation vote and directed the parties to provide written submissions on the timeliness and constitutional jurisdiction issues.

The Board considered whether to give effect to a representation vote in a certification application by CAW-Canada Local 195, given a prior one-year bar imposed on the national union, CAW-Canada.

The employer argued that section 10(3) of the Labour Relations Act barred the local union's application, or alternatively, that the Board should exercise its discretion under section 111(2)(k) to refuse to entertain it.

The Board held that section 10(3) applies only to the same trade union applicant, and Local 195 is a distinct legal entity from the national union.

The Board declined to exercise its discretion to refuse the application, noting that a competing application by the UAW would have resulted in a vote anyway.

The Board certified Local 195 based on the vote results.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding her authority to appoint a conciliation officer.

The union had requested conciliation after giving notice to bargain to the employer, which objected on the basis that it had contracted out all cleaning work to a successor employer, leaving the bargaining unit empty.

The Board advised that the deemed sale of the business did not terminate the union's bargaining rights or its collective agreement with the predecessor employer.

Therefore, the union was entitled to give notice to bargain, and the Minister has the authority to appoint a conciliation officer, despite the practical difficulties of bargaining for an empty unit.

The applicant union applied for certification and proposed a specific bargaining unit.

The responding hospital initially proposed a different unit but later agreed in writing to the applicant's proposed unit.

A representation vote was held based on this agreement.

On the eve of the vote, the hospital attempted to argue it had only agreed to a voting constituency, not the bargaining unit itself, and claimed the unit would cause undue fragmentation.

The Board held that the statutory scheme does not permit a 'qualified' agreement on a bargaining unit description.

The hospital was bound by its agreement, and the Board found the agreed-upon unit to be appropriate.

A certificate was issued to the applicant.

The applicant filed an application to terminate the responding party's bargaining rights.

The responding party raised preliminary objections regarding the timeliness of the application and the failure to properly deliver it prior to filing.

The Board found that under the new Interim Certification and Termination Rules, applications are deemed filed on the date they are received by the Board, not the date they are sent by registered mail.

Because the application was received after the collective agreement had expired, it was untimely.

The application was dismissed, with one Board Member dissenting.

The Practical Nurses Federation of Ontario applied for certification to represent practical nurses employed by the responding party.

The responding party filed a timely response proposing a slightly different bargaining unit, and the Board ordered a representation vote based on the application and response.

After the vote was ordered, the responding party sought to amend its response to propose an 'all employee' bargaining unit.

The Board held that the responding party was bound by its original response, as allowing an amendment after the statutory deadline and after vote arrangements were made would prejudice the applicant and undermine the expedited certification process.

A certificate was issued to the applicant.

The applicants sought declarations and directions regarding an anticipated work stoppage by the responding trade unions in support of the 'Days of Protest' against the provincial government.

The Board found that the planned concerted refusal to work during the term of a collective agreement constituted an unlawful strike under the Labour Relations Act, 1995, notwithstanding its political purpose.

The Board exercised its discretion to issue declaratory relief and cease-and-desist directions, noting the applicants' unsuccessful efforts to accommodate the protest and the unions' clear intention to disrupt production.

The Toronto Transit Commission (TTC) brought an application alleging that union leaders and organizations breached section 83 of the Labour Relations Act by encouraging protesters to picket TTC sites during the 'Days of Protest', which would cause TTC employees to engage in an unlawful strike.

The Ontario Labour Relations Board found that verbal statements constitute 'acts' under section 83 and that the provision's restriction on Charter rights of expression and assembly is demonstrably justified.

The Board concluded that two union leaders breached the Act and issued cease and desist orders restricting picketing at TTC access points to ensure employees could work, while dismissing the application against a third leader and the organizations.

A dissenting member argued that section 83 should not apply to political speech and that the restrictions were not justified under the Charter.

The applicant union applied for certification and a representation vote was held.

Several employees objected to being included in the bargaining unit, raising concerns related to community of interest.

The Board applied the test from The Hospital for Sick Children and concluded that the objecting employees' allegations, even if true, would not change the result of the application.

As more than fifty percent of the ballots were cast in favour of the applicant, the Board issued a final decision without a hearing, defined the appropriate bargaining unit, and directed that a certificate issue to the applicant.

The applicant employer applied under section 65(2) of the Labour Relations Act, 1995 to terminate the responding party union's bargaining rights.

The union brought a motion to dismiss the application for failing to disclose a prima facie case.

The Board found that the union had not slept on its rights and was making efforts to bargain, despite unsmooth negotiations.

Applying the principle that section 65(2) is to be used as a shield and not a sword, the Board granted the motion and dismissed the employer's application.

The applicant union applied for certification of a bargaining unit of stage employees at the Grand Theatre Centre of Sudbury.

The only issue in dispute was whether the stage hands were employees or independent contractors.

Applying the eleven-factor test from Algonquin Tavern, the Board found that the stage hands did not exhibit entrepreneurial activity, were paid standard rates, and worked under the ultimate control of the theatre's principal.

The Board concluded they were employees, not independent contractors, and directed that a certificate issue to the applicant.

The applicant union applied for certification to represent a bargaining unit of projectionists at the responding party's IMAX theatre.

The parties agreed to have the Board determine as a preliminary issue whether the applicant had craft status with respect to the projectionists under section 6(3) of the Labour Relations Act.

The Board found that the projectionists exercised technical skills distinguishing them from other employees, that the union commonly bargained separately for this craft, and that the union pertained to such skills.

The Board concluded that the three conditions for craft status were satisfied.

In an application for certification of a craft unit of projectionists, the union objected to cross-examination regarding the specific skills exercised by the projectionists.

The union argued that the licensing requirement under the Theatres Act was determinative of the projectionists' status as a distinguishable craft under section 6(3) of the Labour Relations Act.

The Board upheld the objection, finding that the mandatory licensing regime under the Theatres Act established that the projectionists were members of a craft by reason of which they were distinguishable from other employees, making further inquiry into their technical skills unnecessary.

The applicant union sought a declaration that the responding party was a successor employer under section 64 of the Labour Relations Act.

The responding party had leased the premises and equipment of a former timber mill from the predecessor employer, which had been closed for approximately two years.

The responding party argued it was a research operation, not a production operation like the predecessor.

The majority of the Board found that the responding party had acquired and revived part of the predecessor's business, as it used the same premises and machinery to produce similar wood products.

The Board declared that the union's bargaining rights continued with the responding party.

One Board member dissented, arguing there was no existing business to sell.

The applicant union brought an application under section 73.1 of the Labour Relations Act regarding a strike of counter attendants and car jockeys.

The responding party employer challenged whether the strike vote met the statutory requirements for ample opportunity to vote and secrecy of the ballot.

The Board found that the notice provided was sufficient and that the voting arrangements, while not perfect, provided a secret ballot process that employees could opt out of, satisfying the requirements of the Act.

As the strike had ended, the matter was terminated.

The Minister of Labour referred two questions to the Ontario Labour Relations Board: whether the Canadian Red Cross Society (Ontario Division) is a 'hospital' under the Hospital Labour Disputes Arbitration Act (HLDAA), and whether its homemakers are 'hospital employees'.

The Board concluded that the Society's Homemaker Services Program and the Brant County Home Care Program do not meet the statutory definition of a 'hospital'.

The Board emphasized that homemaking services are provided in patients' homes rather than in a residential institution, are not primarily medical in nature, and are not statutorily required.

Consequently, the homemakers are not hospital employees and retain the right to strike under the Labour Relations Act.

The applicant union applied for certification to displace the incumbent union representing employees of the Ottawa Board of Education.

A pre-hearing representation vote was held, which the applicant won.

The Board raised the issue of whether the membership evidence filed met the requirements of section 9 of the Labour Relations Act, which requires that employees be 'members' of the trade union, as opposed to section 8 which allows for persons who 'have applied to become members'.

The majority of the Board held that the membership evidence, which stated the employee was making an application and agreeing to be bound by the union's constitution, was sufficient to establish membership for the purposes of section 9.

The Board certified the applicant union.

One Board member dissented, arguing the evidence only showed an application for membership, not actual membership.

The applicant sought leave to withdraw its application under section 91 of the Labour Relations Act.

The responding party employer requested that the withdrawal be on a 'with prejudice' basis due to expenses incurred and potential unfairness if the matter were resurrected.

The Board declined to require the withdrawal to be 'with prejudice', noting its practice of facilitating settlements and that abuse of process could be raised if a subsequent application is filed.

Leave to withdraw was granted.

The applicant union applied for certification of a single retail store location.

The responding employer argued that a single store unit was inappropriate due to the frequent interchange of employees among its six Toronto-area stores and centralized training and buying practices, proposing instead a municipal-wide unit.

The Board applied the Hospital for Sick Children test and found that the single location unit would not cause serious labour relations problems.

The Board granted interim certification for the single store unit, pending the resolution of disputed supervisory classifications.