Janice Johnston

The applicant union filed applications for certification and unfair labour practice complaints against two temporary personnel agencies, Dare Personnel Inc. and Personnel Force Inc. The union sought bargaining rights for electricians supplied by the agencies to the federal Department of Public Works.

The Board determined as a preliminary issue whether the agencies were the employers of the electricians.

Applying the York Condominium factors, the Board found that fundamental control over the electricians' day-to-day work, including direction, supervision, and the authority to remove them from the site, rested with Public Works, not the agencies.

Consequently, the Board concluded that the personnel agencies were not the employers and dismissed the certification applications.

Following a Board decision combining two bargaining units, the parties were unable to agree on the wage rates for three service technicians located in northern Ontario.

The union argued that the existing collective agreement's wage rates should automatically apply, while the employer proposed lower regional rates due to market conditions and higher operating costs in the north.

The Board declined to automatically extend the existing collective agreement, emphasizing the importance of collective bargaining.

Acting to complete the negotiation process, the Board directed a 4% wage increase for 1993 and an additional 4% for 1994, finding a middle ground between the parties' positions.

The union applied for certification and filed an unfair labour practice complaint alleging that the employer laid off three employees due to their union organizing activities.

The employer argued the layoffs were due to a decline in orders and that one employee, Ms. Scions, should be excluded from the bargaining unit as management.

The Board found that Ms. Scions did not exercise managerial functions and was an employee.

The Board also found that the layoffs were motivated by anti-union animus, violating the Labour Relations Act.

Concluding that the employer's actions made it impossible to ascertain the true wishes of the employees, the Board exercised its discretion under section 9.2 to certify the union and ordered the reinstatement of the laid-off employees with compensation.

The applicant union requested reconsideration of a prior Board decision that refused to enforce an interest rate of 120 per cent per annum stipulated in the collective agreement.

The applicant sought $1,604.19 in interest.

The Board dismissed the request for reconsideration, finding that the applicant did not adduce new evidence or raise new representations.

Furthermore, the Board held that the 120 per cent interest rate constitutes a 'criminal rate' under section 347 of the Criminal Code.

The Board concluded that it has the jurisdiction and public policy mandate to decline to enforce an illegal and unconscionable term in a collective agreement.

The United Steelworkers of America applied for certification to represent employees of Roy Ayranto Sales Limited.

Several employees filed objections alleging that union supporters used coercion, intimidation, and threats to job security to obtain membership evidence.

The Board found that the individuals making the threats were not union officials and had no authority to carry them out, and that the objecting employees did not sign cards as a result.

The Board also dismissed an allegation by one employee that she was misled into signing a card, finding her testimony not credible.

The Board concluded that the union's membership evidence was reliable and granted the certificate.

The union applied for certification to represent employees at two divisions of the employer.

The employer argued for two separate bargaining units, while the union and objecting employees sought a single unit.

The Board applied the Hospital for Sick Children test and found a single comprehensive unit appropriate, as it would not cause serious labour relations problems.

The Board also assessed the voluntariness of employee petitions opposing the union.

Finding that the petitions were circulated during working hours with the tacit approval of management and involved shutting down machinery, the Board concluded they did not represent a voluntary expression of employee wishes.

A final certificate was issued for the single bargaining unit.

The applicant union sought certification for a bargaining unit of security guards.

The employer argued that five individuals classified as site supervisors exercised managerial functions under section 1(3) of the Labour Relations Act and should be excluded.

The Board reviewed the duties of a representative site supervisor, finding that the vast majority of his time was spent performing the same duties as other security guards.

His supervisory functions were minimal, consisting mainly of scheduling and reporting incidents, without independent disciplinary or hiring authority.

The Board concluded the site supervisors functioned as lead hands rather than managers, and included them in the bargaining unit.

A final certificate was issued.

The union filed a complaint alleging the employer violated the Labour Relations Act by issuing a written reprimand to a union executive member.

The member had visited a volunteer's home to lobby against a city committee's decision to replace a bargaining unit position with volunteers.

The employer argued the discipline was for a breach of the duty of fidelity, not anti-union animus.

The Board found the member's actions were protected union activities and that the discipline intentionally interfered with the administration of the trade union.

The Board ordered the discipline rescinded.

The applicant union applied for certification and filed an unfair labour practice complaint against the responding party, a waste management company.

The responding party raised a preliminary objection, arguing that its business of transporting waste from Ontario to the United States constituted an extra-provincial undertaking under section 92(10)(a) of the British North America Act, placing it under federal jurisdiction.

The Board found that the responding party operated as a common carrier whose primary function was the regular and continuous transportation of waste across the border.

Consequently, the Board concluded that the business was a federal undertaking and dismissed the applications for lack of constitutional jurisdiction.

The applicants, taxi drivers and union members, sought an interim order under section 92.1 of the Labour Relations Act to prevent the union from selling three new accessible taxi stand spots at the Ottawa International Airport pending a duty of fair representation complaint.

The applicants alleged the spots should have been allocated by seniority rather than by lottery.

The Board applied the test for interim relief, balancing the harm to the parties.

The Board found that the potential harm to the applicants was primarily financial and could be remedied in the main proceeding, whereas granting the order could delay the provision of accessible taxis, jeopardize the employer's contract, and potentially harm the union membership.

The application for interim relief was dismissed.

The union applied to combine a newly certified bargaining unit of three service technicians in northern Ontario with an existing bargaining unit of service technicians based in Richmond Hill.

The employer opposed the combination, arguing a lack of community of interest and expressing concern that it would lose the opportunity to negotiate terms for the northern employees, who faced different economic realities.

The Board found that the employees shared a community of interest as they performed identical work and reported to the same manager.

The Board ordered the combination of the bargaining units to facilitate viable and stable collective bargaining and reduce fragmentation.

However, the Board declined to order that the existing collective agreement automatically apply to the northern employees, instead referring the matter back to the parties to negotiate the terms for the newly added employees.

Following a finding that the union breached the Labour Relations Act by requiring the complainant to sign an apprenticeship contract, the Board held a hearing to assess damages.

The Board determined that the complainant did not fail to mitigate his damages by refusing a work referral as an apprentice, as accepting it would have jeopardized his journeyman status and furthered the union's breach.

However, the Board found that the complainant unreasonably delayed filing his complaint by approximately three months, which constituted a failure to mitigate.

The parties were directed to meet and attempt to agree on the quantum of damages, with the Board remaining seized of the matter.

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

A representation vote was held, resulting in a tie.

The employer requested that an employee who was absent on the day of the vote be permitted to vote by proxy, by mail, or upon returning to work.

The Board denied the request, noting that the employer had agreed to the vote date and had signed a consent and waiver form immediately after the vote, agreeing to an immediate count and waiving any objections to the regularity of the balloting.

As not more than fifty percent of the ballots were cast in opposition to the union, the application was dismissed.

The applicant union filed a complaint alleging that the respondent employer violated section 15 of the Labour Relations Act by bargaining in bad faith.

The parties had previously signed a voluntary recognition agreement defining the bargaining unit.

During negotiations for a collective agreement, the employer insisted on a significantly different scope and recognition clause and bargained the issue to impasse.

The Ontario Labour Relations Board held that while parties may discuss altering a bargaining unit, pressing the issue to impasse violates the duty to bargain in good faith.

The Board directed the employer to withdraw its proposed clause and confirm the agreed-upon bargaining unit description.

The complainant, a union member, alleged that his union violated sections 69 and 70 of the Labour Relations Act by removing him from his steady projectionist job after the theatre reduced its operating hours.

The union's executive board decided to eliminate the third steady position and split the remaining hours between the two senior projectionists.

When the complainant attempted to appeal this decision to the general membership, the union presented the matter for information only and refused to hold a vote on his specific request.

The Board found no violation of section 69, as the employer did not make the removal decision.

However, the Board held that the union acted arbitrarily, contrary to section 70, by denying the complainant his right to have the general membership vote on his request to remain in the position with reduced hours.

The Board directed the union to allow the complainant to present his case to the membership for a vote.

The applicant union requested reconsideration of a previous Board decision that found three Bindery Supervisors did not exercise managerial functions and should be included in the bargaining unit.

The union sought to introduce evidence from one of the supervisors, obtained during a subsequent phase of the hearing, arguing it contradicted the Board's findings.

The Board dismissed the request, holding that the evidence was available during the initial phase of the hearing and could have been adduced with due diligence.

A dissenting member would have granted the reconsideration, arguing the Board has a statutory obligation to determine the appropriate bargaining unit regardless of when the evidence is presented.

The union referred a grievance to the Board alleging the employer violated the collective agreement by failing to pay travel time to nine maintenance mechanics who attended a mandatory training course outside Metro Toronto boundaries.

The employer argued that attending a training course was a 'duty' rather than 'work' and that the travel expense provision only applied to the construction industry.

The Board rejected the employer's arguments, finding that the employees were performing work on behalf of the employer and that the plain language of the collective agreement entitled them to travel expense remuneration.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 126 of the Labour Relations Act, alleging the respondent employer failed to pay travel time.

As a preliminary matter, the applicant argued the grievance had already been settled at Step Three of the collective agreement's grievance procedure by a joint Labour-Management Relations Committee.

The respondent argued the Committee's decision was not a binding settlement because the respondent did not agree to it, and that denying access to arbitration violated the Act.

The majority of the Board upheld the preliminary motion, finding the collective agreement empowered the Committee to issue a binding settlement and that this mechanism did not conflict with the statutory scheme.

The Board directed the respondent to comply with the settlement.

A dissenting member would have dismissed the motion, arguing the Committee process denied the parties their statutory right to an impartial arbitration.

The Association of Allied Health Professionals applied for certification to represent paramedical employees of the Perth District Health Unit.

The employer and the intervener (CUPE) argued that a recent agreement between them to include the disputed classifications in CUPE's existing bargaining unit acted as a bar to the application.

The Board found that the agreement, which arose in the context of a section 106(2) application, did not have retroactive effect and could not bar the certification application.

The Board determined the proposed bargaining unit was appropriate and, finding that more than 55% of the employees were members of the applicant, directed that a certificate issue.

The complainant alleged she was constructively dismissed and penalized under the Occupational Health and Safety Act and the Smoking in the Workplace Act after raising concerns about second-hand smoke in the workplace.

The employer had a smoking policy in place and attempted to accommodate her, but concluded a completely smoke-free area was not possible.

The Board found that the complainant voluntarily resigned and did not attempt to rescind her resignation, dismissing the complaint.

A dissenting board member would have found constructive dismissal based on the employer's failure to provide reasonable accommodation.