J. F. Kennedy

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 applicant union applied for certification to represent occasional teachers in the respondent's elementary panel and requested a pre-hearing representation vote.

The respondent argued the application was an abuse of process due to a recently dismissed identical application and disputed the proposed bargaining unit.

The Board declined to resolve the abuse of process and bargaining unit disputes at this stage, noting that a pre-hearing vote is designed to test representation quickly based on an appearance of support.

The Board directed a pre-hearing representation vote by mailed ballot, with the ballots to be segregated and the ballot box sealed pending resolution of the disputed issues.

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

Three ballots were segregated due to disputes over whether the individuals exercised managerial functions.

After the non-segregated ballots were counted, revealing a majority in favour of the union, the applicant conceded that one of the disputed individuals exercised managerial functions.

The respondent employer argued the applicant could not change its position after the vote results were known.

The Board held that a party may agree with the opposing party's position at any stage.

As the remaining two disputed ballots could no longer affect the applicant's right to certification, the Board certified the applicant on an interim basis and appointed an officer to inquire into the remaining disputed individuals and the part-time employee issue.

The applicant union sought certification but erroneously included managerial supervisors in its proposed bargaining unit description.

Relying on this inclusion, two supervisors organized a petition opposing the union.

At the hearing, the union amended its description to exclude the supervisors, rendering their petition invalid as a voluntary expression of employee wishes due to managerial taint.

Because the Board's original notice had explicitly invited the supervisors to respond based on the union's drafting error, the Board ordered the application to be re-posted in its amended form with a new terminal date to allow employees a fair opportunity to respond.