D. E. Franks

The applicant union sought certification to represent a bargaining unit of home day care providers working for the respondent.

The respondent argued the providers were independent contractors, while the union argued they were dependent contractors.

The Board found that the providers were in a position of economic dependency on the respondent, as they relied mainly on the respondent for work.

Furthermore, the providers were under an obligation to perform duties analogous to an employee, given the extensive regulation of their activities and the respondent's role in enforcing those regulations.

The Board concluded the providers were dependent contractors and directed the counting of the ballots.

A dissenting member found the providers were not dependent contractors.

The applicant union brought a motion requesting the Board to direct the respondents to comply with the duty imposed by sections 1(5) and 63(13) of the Labour Relations Act to adduce all material facts regarding successor rights and related employer allegations.

The respondents had tendered witnesses who could only provide hearsay evidence regarding the formation of the related entities.

The Board held that the tendering of hearsay evidence did not comply with its previous direction or the statutory onus, as the applicant is entitled to cross-examine on the direct considerations involved in the transactions.

The Board directed the respondents to tender direct evidence concerning the events leading up to the formation of the entities.

The applicant union referred three grievances to arbitration, alleging the respondent Board of Education violated the subcontracting clause of the provincial collective agreement by contracting masonry work to non-union employers.

The respondent argued it was merely a purchaser of construction, not an employer operating a business in the construction industry.

The Board found that the respondent exercised sufficient control over the job site and the selection of contractors to be considered engaged in a business in the construction industry.

The grievances were allowed and the applicant was entitled to compensation.

The complainants, employees laid off from a Dominion Stores warehouse, alleged that their union breached its duty of fair representation under section 68 of the Labour Relations Act.

They claimed the union improperly refused to process their grievances regarding the lay-off, failed to file a bad faith bargaining complaint against the employer concerning store closures, and kept members in the dark.

The Ontario Labour Relations Board dismissed the complaints, finding that the union had fairly considered the grievances in light of a negotiated lay-off arrangement and had reasonably concluded that a bad faith bargaining complaint would not succeed.

The Board found no evidence of arbitrary, discriminatory, or bad faith conduct by the union.

The complainant and a co-worker were moving a steel beam when it fell from the hoist, narrowly missing the complainant.

An argument ensued between the two workers, and the shop manager directed the complainant to return to work with the co-worker.

The complainant refused, and the employer treated this as a quit or termination.

The complainant filed a complaint under the Occupational Health and Safety Act, alleging he was constructively dismissed for refusing unsafe work.

The Board held that although the complainant did not use specific safety language, his refusal was based on a genuine safety concern following the near-miss.

The Board found the complainant was entitled to a remedy and directed the parties to resolve the issue, remaining seized if they could not agree.

A dissenting member would have found that the complainant quit and authored his own misfortune.

The applicant trade union applied for certification in the construction industry.

On the terminal date, the respondent employer filed a list of eight employees.

Later, during the Labour Relations Officer's inquiry, the employer sought to add five additional names to the list, claiming that relevant documents had just been located.

The Board denied the request, finding that the employer had the documents in its possession at all material times and made no reservations when filing the original list.

Allowing the late amendment would render the terminal date requirements meaningless.

The Board proceeded to certify the applicant.

The complainants brought a section 89 complaint alleging the union violated section 68 of the Labour Relations Act by arbitrarily or in bad faith failing to pursue a section 15 failure to bargain complaint against the employer.

The complainants sought an order for the production of documents from the employer to show that a prima facie section 15 case existed.

The Board denied the request, holding that the merits of the unpursued section 15 case, based on documents unknown to the union at the time, were irrelevant to assessing the union's state of mind and conduct when it decided not to proceed.

The applicant union applied for certification to represent employees of the respondent, who operated a bus terminal exclusively for Greyhound Lines of Canada Limited.

The respondent raised a preliminary objection that its operations fell within federal jurisdiction, as Greyhound is an inter-provincial carrier.

The Board found that the respondent's ticketing, parcel handling, and maintenance functions were an integral and essential part of Greyhound's inter-provincial operation.

Consequently, the Board determined that the respondent's labour relations were subject to federal jurisdiction and dismissed the application.

The applicant union filed a complaint alleging that the respondent Board of Education engaged in an unlawful lock-out when it laid off all four plumbers in the bargaining unit without explanation and sub-contracted their work.

The respondent moved for a non-suit, arguing there was no evidence of a lock-out or of a motive to compel or induce employees to refrain from exercising their rights.

The Board rejected the non-suit motion, finding that in the context of a disputed bargaining relationship, the unexplained lay-off was intended to send a message to the employees to change their union's bargaining position.

As the respondent elected not to call evidence, the Board drew an adverse inference and declared the lay-off an unlawful lock-out.

The applicant trade union requested that the Board reconsider and remove a six-month bar on certification applications imposed in a previous decision dismissing its application.

The applicant argued that the bar would prevent it from applying during the statutory 'open' period in the two months preceding April 30, 1984, as prescribed by section 146(3) of the Labour Relations Act.

The interveners opposed the request, citing the Board's normal policy of imposing a bar to allow a 'cooling off' period and prevent repetitious applications.

The Board found that neither policy reason applied, as the open period was two years after the last one, and the continuous nature of the proceedings did not make a new application repetitious.

The Board revoked the bar to preserve the employees' right to be involved in certification applications during the statutorily protected open period.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employers violated the collective agreement.

Prior to the hearing, counsel for the parties negotiated a settlement.

The respondent later argued its counsel lacked the authority to bind Min-A-Mart Ltd. The Board found that the respondent's counsel had ostensible authority to settle the matter on behalf of both employers and that the applicant reasonably relied on this representation.

The Board enforced the settlement and declared Min-A-Mart Ltd. bound by the provincial collective agreement.

The applicant union applied for certification to represent projectionists employed by the respondent at two theatres in Goderich, Ontario.

The Board found the applicant to be a trade union under the Labour Relations Act.

The respondent argued that part-time employees should form a separate bargaining unit, but the Board applied its policy that part-time employees are normally included in a craft unit.

Finding that more than 55% of the employees in the bargaining unit were members of the applicant, the Board granted the application and ordered a certificate to issue.

The complainant union alleged that the respondent prime contractor engaged in an unlawful lock-out by reducing the electricians' work week from 36 to 32 hours after they refused to agree to a modified four-day work week at straight time.

The Ontario Labour Relations Board found that the respondent's actions constituted an unlawful lock-out under section 72(1) of the Labour Relations Act, as the reduction in hours was intended to compel the employees to modify their provincial agreement.

The Board also found that the respondent violated section 146(2) by attempting to negotiate an arrangement other than a provincial agreement, and ordered the respondent to cease and desist and pay damages.

The complainant union filed a complaint concerning a work assignment at a nuclear generating station, claiming the maintenance and repair of small construction equipment should be assigned to its members rather than the respondent union.

The Board found that the respondent union had been performing the work for a year prior to a mark-up meeting where the work was inadvertently assigned to the complainant.

Applying the criteria of area practice and the policy of not disturbing long-standing assignments, the Board affirmed the assignment of the work to the respondent union.

The applicant union applied for certification under the construction industry provisions of the Labour Relations Act.

The Board considered the report of a Labour Relations Officer regarding the status of six employees.

The Board found that three employees who performed warranty inspections and repairs were service employees, not construction labourers, and were excluded from the bargaining unit.

Of the three employees challenged as managerial, the Board found one was excluded under section 1(3)(b) of the Act as he retained superintendent responsibilities, while the other two were working foremen and included in the unit.

The applicant trade union applied for certification under the construction industry provisions of the Labour Relations Act.

The Board did not receive the evidence of representation or Form 80 prior to the terminal date.

At a hearing, the Board heard viva voce evidence from the union's business representative, supported by a Canada Post registration receipt, that the documents were sent by registered mail before the terminal date.

The Board accepted this evidence, found the union had the requisite membership support, and issued a certificate.

The applicant requested reconsideration of a previous Board decision granting him a religious exemption from paying union dues, seeking to have the exemption apply retroactively to the date of his application.

The Board found that section 47(1) of the Labour Relations Act does not limit the scope of its orders regarding commencement dates.

Since the union and employer had notice of the application and potential liability from the outset, the Board amended its order to apply from the application date and directed the union to remit the dues collected during that period to the agreed-upon charity.

The applicant, an employers' organization, applied for accreditation as the bargaining agent for employers in the non-destructive testing industry who have a bargaining relationship with the respondent council of trade unions.

The Ontario Labour Relations Board found that the applicant met the statutory requirements to be an employers' organization.

The Board also determined that the requested unit of employers, which included multiple sectors of the construction industry, was appropriate for collective bargaining given the specialized nature of the industry and the existing exemptions from province-wide bargaining.

A Certificate of Accreditation was issued.

The complainant Machinists union filed a complaint under section 91 of the Labour Relations Act regarding the assignment of work involving the set-up and operation of a Horizontal Boring Mill at the Darlington Construction site.

The employer, Ontario Hydro, had assigned the work to members of the U.A. The Board considered criteria including collective bargaining relationships, skill and training, economic considerations, and employer practice.

The Board found that economic considerations and employer practice favoured the U.A., as the machine was used for a limited purpose in a pipe fabrication shop where U.A. members were already working.

The Board confirmed the assignment to the U.A. and dismissed the complaint.

The applicant applied to terminate the respondent union's bargaining rights.

The union raised preliminary objections that the application was untimely and that the applicant lacked status as an employee in the bargaining unit because he was not hired through the union hiring hall.

The Board dismissed the timeliness objection, accepting the applicant's earlier correspondence as a timely application despite technical defects.

The Board also dismissed the status objection, distinguishing previous case law because the applicant was a long-standing employee hired before the union obtained bargaining rights, not someone hired to avoid collective bargaining obligations.

The matter was directed to be listed for continuation.