D. A. Patterson

The Ontario Public Service Employees Union (OPSEU) brought applications alleging that contracts between the Ministry of Correctional Services and various community agencies constituted a transfer of part of the Crown's undertaking under the Successor Rights (Crown Transfers) Act.

The agencies provided specialized counselling and discharge planning services to inmates.

The Board dismissed the applications, finding that the agencies were using their own independent undertakings to supply services to the Crown and had not acquired any part of the Crown's undertaking.

The performance of similar work by the agencies did not amount to a transfer of an undertaking.

The applicant union sought to certify a bargaining unit composed exclusively of salaried supervisors at the respondent's manufacturing plant.

The respondent employer argued that the supervisors exercised managerial functions under section 1(3)(b) of the Labour Relations Act and were therefore not employees eligible for collective bargaining.

The Ontario Labour Relations Board reviewed the supervisors' duties, including their authority to initiate discipline, grant time off, and direct work.

The Board concluded that the supervisors exercised managerial functions and dismissed the application for certification.

The union applied for certification and submitted documentary evidence of membership for more than 55% of the employees in the bargaining unit.

A group of objecting employees filed an anti-union petition, and the union subsequently filed a reaffirmation document signed by employees confirming their support for the union.

The objectors alleged that union supporters engaged in intimidation and harassment, including threats to job security and physical safety.

The Board found the allegations of misconduct unsubstantiated and concluded that the union's membership evidence was reliable.

The Board declined to order a representation vote and granted certification.

The complainant alleged that the respondent employer violated section 50(1) of the Occupational Health and Safety Act by terminating his employment in reprisal for his testimony at a previous Board hearing.

The employer requested an adjournment on the day of the hearing, citing financial inability to bring witnesses, which the Board denied.

Proceeding in the employer's absence, the Board accepted the complainant's uncontradicted evidence that he was publicly vilified, reassigned to a lesser role, and ultimately terminated after testifying on behalf of a former colleague.

The Board found the employer failed to discharge the reverse onus under section 50(5) and ordered the payment of damages.

In an application for certification, the union brought a motion for non-suit regarding the voluntariness of an employee petition after the objectors and employer had presented their evidence.

The union requested that it not be put to its election on whether to call evidence before arguing the motion.

The Board held that it has the discretion to determine its own practice and procedure and is not strictly bound by civil court rules requiring an election on a non-suit motion.

The Board allowed the union to argue the motion without electing, noting that doing so was fair, sensible, and avoided unnecessary delay and expense.

The applicant union applied for certification to displace the incumbent union at a nursing home.

A pre-hearing representation vote was held, but the ballot box was sealed pending a determination on the timeliness of the application.

The incumbent union did not attend the hearing.

The Board analyzed the complex provisions of the Hospital Labour Disputes Arbitration Act regarding the 'open period' for displacement applications when collective agreements are determined by interest arbitration.

The Board concluded that based on the dates of the arbitration awards settling common issues, the application was made during the lawful open period.

The Board directed that the ballots be counted.

The complainant filed an unfair labour practice complaint against the union, identical to a prior complaint that had been withdrawn following a meeting with a Labour Relations Officer.

The union raised a preliminary objection that the withdrawal constituted a final settlement of the matter.

The Board found that the prior complaint had been settled during the officer's meeting, rejecting the complainant's assertion that he withdrew it only to refile and obtain a different officer.

The preliminary objection was upheld and the complaint was dismissed.

One Board Member dissented.

The applicant union applied for certification to represent employees of the respondent.

The union's constitution restricted membership to employees of a different company, and the union had no established practice of admitting persons to membership without regard to these eligibility requirements.

Applying section 105(4) of the Labour Relations Act and the Supreme Court of Canada's decision in Metropolitan Life Insurance Company, the Board found that the employees could not be considered members of the applicant.

The application for certification was dismissed.

The union applied for certification and filed an unfair labour practice complaint alleging the employer terminated five night crew employees due to their involvement in an organizing campaign.

The employer claimed the terminations were part of a chain-wide cost-reduction strategy.

The Board found the employer's actions inconsistent with its prior policies and concluded the terminations were tainted by anti-union animus, violating the Labour Relations Act.

The Board ordered the employees reinstated with compensation.

Furthermore, finding that the employer's substantial misconduct would prevent the ascertainment of employees' true wishes in a representation vote, the Board granted certification pursuant to section 8 of the Act.

The applicant union applied for certification to represent employees of the respondent.

A group of employees filed a petition opposing the certification.

The Board found that the union had sufficient membership support for automatic certification, subject to the voluntariness of the petition.

After hearing evidence from the objectors, the union moved for a non-suit.

The Board granted the motion, finding the petition involuntary because it was circulated with the assistance of individuals closely associated with management and in a context where the employer had expressed opposition to the union.

As the petition was given no weight, the Board issued a certificate to the applicant union.

The complainant employer association alleged that the respondent union breached its duty to bargain in good faith under section 15 of the Labour Relations Act.

The union had insisted on a single province-wide collective agreement for the elevator industry and refused to negotiate a separate agreement for non-ICI work, while negotiating separate non-ICI agreements with individual employers during a lawful strike.

The Board found that the union was bargaining within the scope of its rights and did not violate the Act by pressing its position to impasse or by making interim agreements with individual employers.

The complaint was dismissed.

The union applied for certification and filed an unfair labour practice complaint alleging that the employer's decision to lay off several employees was motivated by anti-union animus.

The employer argued the layoffs were strictly due to the loss of a major contract and a general economic downturn.

The Board found that while there were valid business reasons for downsizing, the specific selection of employees for the July layoffs was tainted by anti-union animus, as the laid-off employees were key union supporters.

The Board also found that letters distributed by the employer's president crossed the line of permissible free speech into undue influence by linking unionization to job insecurity.

A petition circulated by employees opposing the union was deemed involuntary due to the climate of fear regarding job security.

The Board ordered the reinstatement of the unlawfully laid-off employees with compensation and certified the union.

The applicant union applied for certification to represent employees at the respondent's hotel.

The parties disputed the composition of the bargaining unit, specifically whether eleven individuals exercised managerial functions or performed security services such that they should be excluded under the Labour Relations Act, and whether two individuals shared a community of interest with the bargaining unit.

The Board reviewed the duties and responsibilities of the challenged employees, including Sous-Chefs, Banquet Captain, Acting Manager of the Fitness Centre, Chief Steward, Assistant Housekeeper, and Hosts/Hostesses.

The Board concluded that none of the challenged individuals exercised managerial functions within the meaning of section 1(3)(b) of the Act.

The Board also found that the two individuals challenged on community of interest grounds shared a greater community of interest with the bargaining unit than with the office and sales staff.

All challenged individuals were included in the bargaining unit.

In an application for certification, the union objected to the Labour Relations Officer disclosing the membership count before the list of employees was finalized.

The union argued this invited gerrymandering of challenges.

The Board dismissed the objection, clarifying that while parties must finalize their positions on the employee list before the count is announced, all challenges do not need to be fully resolved or litigated first.

The officer's disclosure was consistent with the Board's longstanding practice.

A Labour Relations Officer was appointed to inquire into the remaining dispute regarding the employee list.

The applicant trade union applied for certification of a bargaining unit of construction labourers employed by the respondent.

The parties disputed the inclusion of five individuals on the list of employees.

The Board applied the Gilvesy test to determine employee status on the date of application.

The Board found that one individual did not exercise managerial functions and was included, another was performing bargaining unit work and was included, and two others were more likely than not employees and were included.

One individual was excluded due to insufficient evidence.

Finding that the union had the requisite membership support, the Board directed a representation vote.

The union applied for certification of a bargaining unit of employees at two Midas Muffler locations.

The employer and objectors challenged the union's membership evidence because the receipts lacked the collector's signature, and the objectors filed petitions opposing certification.

The Board held that the membership evidence was valid despite the technical defect, as oral evidence confirmed the collector's identity and the payment of the initiation fee.

The Board also found that the petitions were not voluntary, as they were circulated by employees perceived to be aligned with management and amidst rumours of job losses if the union was certified.

The Board granted the certification application without a representation vote.

One Board member dissented.

The union filed an unfair labour practice complaint and a related employer application under section 1(4) of the Labour Relations Act following the employer's decision to introduce desktop publishing technology at The Mississauga News, which effectively closed the unionized composing room at the production division.

The Board dismissed the unfair labour practice complaint, finding the technological change was motivated by legitimate economic and business reasons rather than anti-union animus.

However, the Board granted the related employer declaration, finding that the production division and The Mississauga News carried on related activities under common control and direction, and declared The Mississauga News bound to the composing room collective agreement.

The complainant, a carpenter and health and safety representative, alleged he was laid off in reprisal for his safety activities, contrary to section 24(1) of the Occupational Health and Safety Act.

The Board found that the employer failed to provide a satisfactory explanation for selecting the complainant for layoff, noting his average or better work performance and the friction caused by his safety duties.

Concluding that the layoff was motivated at least in part by his health and safety role, the Board ordered his reinstatement with compensation.

The applicant employee filed an application for termination of bargaining rights (decertification) against the respondent union.

The Board found that the petition did not express the voluntary wishes of the employees, as the applicant was closely associated with another employee who was perceived as linked to management, and the employer had previously demonstrated anti-union animus by allowing anti-union notices to remain posted and failing to discipline employees who engaged in an anti-union strike.

The application was dismissed, with one Board member dissenting.

The applicant requested the Board to make a declaration pursuant to section 84 of the Act, directing the respondent union to file a copy of its constitution and by-laws.

The union failed to respond to the Board's notice.

The Board granted the request and directed the union to forthwith file a copy of its constitution and by-laws.