J. Kennedy

The Electrical Power Systems Construction Association, Ontario Hydro, and Gilbert Steel Limited filed complaints against the Iron Workers Local 721 regarding an alleged unlawful strike arising from the rodmen's refusal to wear belly-hooks.

The union filed a cross-complaint under the Occupational Health and Safety Act, alleging the employer unlawfully penalized the rodmen for refusing unsafe work.

The Ontario Labour Relations Board dismissed the employer's applications, exercising its discretion not to grant relief since the work stoppage had ceased and damages could be pursued through grievance arbitration.

The Board also dismissed the union's health and safety complaint, finding that the rodmen's blanket refusal to wear the belly-hook—even when their assigned work did not require its use—was not based on a reasonable belief that merely wearing the equipment was likely to endanger themselves or others.

The respondent employer brought a motion for reconsideration of a portion of the Board's remedial order that directed compensation for striking employees.

The employer argued that the Board's original decision changed the law regarding the rights of employers and striking employees, and relied on comments made by the Divisional Court during a judicial review application.

The majority of the Board dismissed the motion, finding that the original decision did not change the law but applied existing principles regarding employer motivation and discrimination.

The Board also declined to treat the Divisional Court's obiter comments as judicial directions, affirming its exclusive jurisdiction and the finality of its decisions under the Labour Relations Act.

One Board member dissented.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 124 of the Labour Relations Act, alleging that the respondent employer violated the Painters' Provincial Agreement by subcontracting painting work to non-union subcontractors.

The employer raised preliminary objections based on res judicata and issue estoppel, arguing that a previous grievance referral had been dismissed.

The Board dismissed the preliminary objections, finding that the previous dismissal was not an adjudication on the merits.

On the main issue, the Board held that a 1967 Working Agreement between the employer and the Toronto Building and Construction Trades Council constituted a valid voluntary recognition agreement that created bargaining rights for all affiliated unions, including the applicant.

Consequently, the employer was bound by the Painters' Provincial Agreement and violated it by subcontracting to non-union employers.

The Board ordered the employer to cease and desist and to pay damages.

During a five-year strike, the complainant union requested an interim order directing the respondent employer to return striking employees to work pending the final disposition of the matter.

The Board treated the request as a motion for reconsideration of an earlier order.

To facilitate a gradual return to work without prejudicing the ongoing litigation regarding whether the employer's return-to-work protocol was discriminatory, the Board directed the respondent to implement its outstanding January 9, 1987 proposal for a complete collective agreement as an interim measure.

The respondent employer applied for reconsideration of the Board's decision and sought a stay of the remedial order.

The employer argued the Board erred in law and jurisdiction, and that the original order improperly allowed the union to dictate the return to work protocol.

The Board dismissed the majority of the reconsideration request, finding no errors in its original decision or its internal consultation process.

However, the Board amended its remedial order regarding damages to clarify that the return to work protocol should be negotiated, changing the end date for compensation to the date the employer presents a non-discriminatory protocol.

One Board Member dissented, stating the reconsideration request should be granted in full.

The complainant union alleged that the respondent employer committed unfair labour practices by refusing to agree to a return-to-work protocol that would displace strike replacements in favour of striking employees, and by subsequently withdrawing its monetary offer.

The employer argued that the reverse onus provision in section 89(5) of the Labour Relations Act violated its equality rights under section 15 of the Charter.

The Board held that section 89(5) does not violate the Charter because the distinction between employers and others is not based on personal characteristics protected by section 15.

On the merits, the Board found that the employer's insistence on retaining strike replacements while recalling striking employees only as vacancies arose was motivated by a desire to discriminate against the strikers for exercising their right to strike, violating sections 64 and 66 of the Act.

Consequently, the employer's bargaining stance also violated the duty to bargain in good faith under section 15.

The Board ordered the employer to table a non-discriminatory return-to-work protocol and compensate the striking employees.

The applicant, a teachers' federation, sought certification to represent occasional teachers employed by the respondent school board.

The respondent objected, arguing the applicant was not a 'trade union' under the Labour Relations Act because its membership included school principals, who allegedly exercised managerial functions.

The respondent also argued the applicant's constitution and practices discriminated on the basis of sex.

The Board held that the inclusion of principals did not deprive the applicant of its trade union status, noting that principals are included in teachers' bargaining units under the School Boards and Teachers Collective Negotiations Act and do not exercise managerial functions over occasional teachers.

The Board also found no evidence of prohibited sexual discrimination, concluding the applicant is a trade union entitled to seek certification.

The applicant trade union applied for certification.

The parties agreed on the general description of the bargaining unit but disputed the inclusion of four individuals whom the respondent claimed exercised managerial functions.

The applicant requested the Board to receive evidence directly to expedite the matter, citing a recent decision.

The Board declined to depart from its normal practice and appointed a Board Officer to inquire into the disputed individuals' duties.

As the applicant's right to certification was not affected by the ultimate composition of the unit, the Board granted interim certification pending final resolution.

The complainant union filed an unfair labour practice complaint alleging that the employer violated sections 64, 66, and 89(7) of the Labour Relations Act by laying off a nurse and abolishing the head nurse position.

The employer raised preliminary objections, arguing that the prior minutes of settlement ceased to operate once a collective agreement was signed, and that the Board should defer the remaining allegations to arbitration.

The Board held that the minutes of settlement, which resolved a prior statutory freeze violation, were of finite duration and could not be enforced under section 89(7) after the collective agreement took effect.

However, the Board declined to defer the remaining unfair labour practice allegations to arbitration, noting the early stage of the parties' collective bargaining relationship and the potential inadequacy of the arbitral remedy.

The section 89(7) complaint was dismissed, and the remaining allegations were referred to the Registrar for a hearing.

The respondent employer requested reconsideration of a Board decision awarding compensation and compound interest for a breach of the collective agreement's hiring hall provisions.

The employer argued that the evidence was hearsay, that interest was improperly calculated, and that the award constituted a double payment of benefits.

The Board rejected most of the employer's arguments, noting they could have been raised at the original hearing.

However, the Board decided to modify the interest calculation from compound to simple interest, reducing the total amount payable to the union in trust for the aggrieved employees to $7,256.36.

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

The union argued that the petition supporting the application was defective because its wording suggested signing was compulsory.

The Board found that the petition, read as a whole with the attached Form 17, clearly gave employees a choice to sign in favour of or against termination.

The Board concluded the petition was voluntary, free from employer influence, and supported by at least 45 per cent of the bargaining unit.

A representation vote was ordered.

The union filed a grievance alleging the employer breached the collective agreement by failing to hire seven individuals referred by the union.

The Board found the employer in breach and ordered compensation for lost wages and benefits.

The Board also considered whether the compensation award should include an interest component.

After reviewing arbitral jurisprudence, the Board concluded it had the implied authority to award interest to fully compensate the aggrieved employees for the loss of the use of their funds.

The Board ordered the employer to pay $5,435.28 in lost wages and $1,972.98 in interest.