E. J. Brady

The applicant trade unions referred a grievance to the Ontario Labour Relations Board alleging that the respondent employer violated provincial collective agreements.

The employer argued it was not bound by any collective agreement, asserting that a 'working agreement' signed in 1960 with the Council was invalid because the Council was not a certified council of trade unions and the employer had no employees represented by the unions at the time of signing.

The Board held that the working agreement constituted a valid voluntary recognition agreement entered into by the Council as an agent for its affiliated trade unions.

Applying the Nicholls-Radtke principle, the Board found that signing the agreement on the understanding that the unions would supply competent workmen did not constitute unlawful employer support.

The Board directed the matter to be listed for continuation of hearing on the merits.

The applicant union sought relief under sections 1(4) and 63 of the Labour Relations Act, alleging that the appointment of a receiver and manager by a bank constituted a sale of a business and that the bank and receiver were related employers.

The Ontario Labour Relations Board dismissed the application, finding that the appointment of a receiver and manager by instrument did not constitute a disposition or sale of the business, making the section 63 application premature.

The Board also declined to make a related employer declaration under section 1(4), as there was no common ownership or control, and the application was merely an attempt to collect uncollectable debts from a solvent creditor rather than to preserve bargaining rights.

The complainant union alleged that the employer committed unfair labour practices under sections 64 and 67(1) of the Labour Relations Act by communicating directly with bargaining unit employees regarding a proposed extension agreement.

The employer had sought to negotiate an extension agreement with the union to match a competitor's terms, but the union refused to meet.

The employer subsequently sent letters to employees and had management personnel speak with employees on the plant floor.

The Board dismissed the complaint, finding that the employer did not attempt to bargain directly with the employees and that the communications were protected by the employer's freedom of expression under section 64, as they did not involve coercion, intimidation, threats, promises, or undue influence.

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

The respondent challenged the Board's jurisdiction, arguing its labour relations fell under federal jurisdiction because 90% of its work in Ontario was performed for Bell Canada, a federal undertaking.

The Board rejected this argument, finding that the respondent's ordinary business was construction, which falls under provincial jurisdiction, and its work was not an integral part of Bell Canada's operations.

The Board also determined that the work performed by the employees did not fall within the industrial, commercial and institutional sector.

Finding that the union had sufficient membership support, the Board ordered a representation vote.

The complainant union alleged that the respondent employer committed an unfair labour practice by discharging a casual nurse during a union organizing campaign.

The grievor had cancelled three of her scheduled shifts in retaliation for the employer cancelling one of her shifts.

The Board found that the employer discharged the grievor solely due to her unprofessional and retaliatory conduct, and that the decision was not tainted by anti-union animus.

The complaint was dismissed.

The complainant union alleged that the respondent employer committed unfair labour practices by discharging nine employees for alleged misconduct during a strike and refusing to arbitrate their dismissals.

The misconduct involved an incident away from the plant where replacement workers were assaulted.

The Board found that some employees were discharged based on a mistaken belief of their involvement or merely for being present, which violated the Labour Relations Act.

The Board ordered the reinstatement of five employees, some with back pay and others without, but upheld the discharges of those who actually participated in the physical assault.

The complainant union filed an unfair labour practice complaint alleging the employer failed to bargain in good faith.

The employer failed to appear at the hearing.

The Board found the employer contravened section 15 of the Labour Relations Act by refusing to provide wage information, reneging on previously agreed language regarding union dues check-off, and pressing illegal demands to impasse, including a demand for employee ratification.

The Board also found the employer's request for a section 40 final offer vote was unlawful as it was used to avoid the duty to bargain.

The Board directed the employer to execute a collective agreement containing the agreed-upon terms.

The complainant filed unfair labour practice complaints alleging that the respondent union and its officials violated sections 3, 68, and 70 of the Labour Relations Act by wrongfully cancelling his union membership.

The respondents brought a preliminary motion to dismiss the complaints for failing to make out a prima facie case.

The Ontario Labour Relations Board granted the motion and dismissed the complaints, finding that section 3 does not create a substantive offence, section 68 only applies to employees in a bargaining unit (which the complainant was not), and section 70 requires an element of intimidation or coercion to compel a person, which was not alleged in the mere cancellation of membership.

The respondent employer raised a preliminary objection arguing that the reverse onus provision in section 89(5) of the Labour Relations Act violates the Canadian Charter of Rights and Freedoms, specifically the presumption of innocence and the right not to be compelled as a witness.

The Board dismissed the objection, following its previous jurisprudence that the reverse onus is a matter of evidence and procedure, not a presumption of guilt.

A request for an adjournment to apply to the courts was denied, and the Board proceeded to hear the complaint.

The applicant union alleged that the appointment of a court-appointed receiver and manager of a nursing home constituted a sale of a business under section 63 of the Labour Relations Act, making the receiver and the secured creditor successor employers.

The Ontario Labour Relations Board dismissed the application, finding that a receiver and manager merely acts as an officer of the court to manage the business on behalf of creditors, and no disposition or transfer of the business occurred until the assets were subsequently sold to a third-party purchaser.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the respondent parent company and its bankrupt subsidiary were a single employer.

The union sought this declaration to realize an unsatisfied arbitration award of $3,403.39 against the subsidiary.

The Board found that while the entities were under common control and direction, it would not exercise its discretion to make the declaration.

The Board held that the purpose of section 1(4) is to preserve bargaining rights, not to provide a 'deep pocket' for debt recovery where the subsidiary had ceased operations and no work had been transferred.

The application was dismissed, with one member dissenting.

The applicant hospital applied under section 106(2) of the Labour Relations Act for a determination of whether 26 'unit supervisors' exercised managerial functions under section 1(3)(b) and were therefore not 'employees'.

The hospital had reorganized its nursing department, replacing 'head nurses' with 'unit supervisors'.

The Board examined the actual duties performed by a representative unit supervisor, noting that while the job description suggested extensive managerial authority, the actual practice involved clearing decisions with an associate director.

The Board concluded that the unit supervisors did not exercise the type of real decision-making authority that would make them managerial, and held that they are employees for the purposes of the Act.

The applicant union filed an application under section 63 of the Labour Relations Act alleging a sale of a business by Chateau Gardens to the respondents, a court-appointed receiver and a secured creditor.

The respondents raised a preliminary objection that the Board lacked jurisdiction because the applicant had not obtained leave of the Supreme Court of Ontario, as required by the receiving order.

The Board held that it had exclusive jurisdiction under sections 106(1) and 108 of the Act, and that requiring leave of the court would constitute an impermissible questioning or restraining of the Board's proceedings.

The Board dismissed the preliminary objection and directed the matter to be listed for a hearing on the merits.

The applicant union sought certification, and a dispute arose regarding the composition of the bargaining unit.

The Board determined that a First Cook exercised managerial functions and was excluded, while a Housekeeper with minor supervisory duties was included.

The Board also found that a maintenance worker who received a $5,000 advance on wages to buy a truck upon turning 65 remained an employee at the time of the application.

The Board directed that the representation vote ballots be counted.

During the hearing of an application for certification and related unfair labour practice complaints, the Board ruled on preliminary issues regarding the applicability of the reverse onus provision in section 89(5) of the Labour Relations Act and the scope of reply evidence.

The Board held that section 89(5) applies to allegations of employer misconduct affecting employment, including threats and interrogations, but not to general allegations of management interference that do not affect employment status.

The Board further ruled that the applicant, having elected to proceed first, could not split its case and must adduce all its evidence in chief, subject to a limited right of reply.

The applicant trade union applied for certification for a bargaining unit consisting of two night auditors.

The respondent employer argued that the appropriate unit should be a 'tag end' unit encompassing all remaining unorganized employees, which would include nine employees across various classifications.

The Board found that the applicant's proposed unit was not viable for collective bargaining and would result in excessive fragmentation.

The Board determined that a 'tag end' unit was appropriate.

As the applicant had membership support of less than forty-five percent in the appropriate unit, the application for certification was dismissed.

The applicant union sought to set aside a representation vote, alleging that the intervener union made misleading statements to employees regarding the potential loss of jobs and changes to the bargaining unit scope if the applicant were certified.

The Board found that the statements made by the intervener's president were within the permissible bounds of electioneering and did not amount to campaign trickery that would impair the employees' ability to express their true wishes.

The application for certification was dismissed as the applicant did not receive majority support.

The applicants applied to terminate the bargaining rights of the respondent union.

The union raised preliminary objections that the applicants lacked status because they were not employees in the bargaining unit (carpenters and carpenters' apprentices) at the time the application was made.

The Board found that on the date of the application, the applicants were employed as labourers, not carpenters.

The Board held that in construction industry termination cases, it only looks at the date of the making of the application to determine employee status.

Since the applicants were not employed in the bargaining unit on that date, they lacked status to bring the application.

The application was dismissed.

The United Brotherhood of Carpenters and Joiners of America, Local 1190 applied for certification shortly before the terminal date of a competing application by the Labourers' International Union of North America, Local 183.

Due to an administrative error, the Board failed to process Local 1190's application and certified Local 183.

Eight months later, Local 1190 requested reconsideration and revocation of Local 183's certificate.

The Board dismissed the request, finding that Local 1190 failed to act with due diligence in pursuing its application, while Local 183 had actively relied on its certificate to seek a collective agreement.

Balancing the interests, the Board concluded that revoking the certificate would cause greater prejudice to Local 183.

The complainant union filed an unfair labour practice complaint alleging that the respondent employer engaged in a series of anti-union actions following certification, culminating in the layoff of a bargaining unit employee and the removal of a secretary from the unit.

The Board found that the employer's conduct demonstrated a persistent pattern of anti-union animus.

The Board concluded that the layoff was motivated by anti-union animus and ordered the employee's reinstatement with back pay.

However, the Board dismissed the complaint regarding the secretary, finding her removal was motivated by genuine business considerations related to her confidential duties.