Judith McCormack

The complainant brought a motion to remove the respondents' counsel, alleging a conflict of interest arising from prior representation.

The Board dismissed the motion, expressing serious doubts about its statutory jurisdiction to regulate the professional conduct of barristers and solicitors, noting that the Statutory Powers Procedure Act protects the right to counsel and specifically exempts lawyers from the tribunal's power to exclude incompetent agents.

Ultimately, the Board declined to entertain the motion on discretionary grounds, finding that the conflict issue was entirely separate from the merits of the duty of fair representation complaint and that determining it would cause undue delay and risk conflicting decisions with the Law Society of Upper Canada or the courts.

The applicant union applied for certification to represent a tag-end unit of employees at Transit Windsor.

The Board first found that the applicant was a trade union within the meaning of the Labour Relations Act, given its fifty-year history of collective bargaining.

The respondent argued that operations supervisors should be excluded based on a 1979 Board decision that excluded their predecessors (transit inspectors) from another unit, and urged the Board to dismiss that part of the application without an inquiry.

The Board declined to apply res judicata or estoppel, noting the passage of ten years and a change in job titles, and appointed a Board Officer to inquire into their duties.

Finally, despite disputes over the status of more than half the proposed bargaining unit, the Board issued an interim certificate under section 6(2) of the Act, finding that the disputes were not insuperable barriers to the commencement of meaningful collective bargaining.

The Canadian Union of Public Employees applied under section 62 of the Labour Relations Act for a declaration that it acquired the rights, privileges, and duties of the Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association following a merger.

A group of audio-visual technicians objected, requesting to be carved out of the bargaining unit.

The Board granted the successor rights declaration, finding that a valid merger had occurred.

The Board dismissed the employees' request, holding that section 62 does not grant the Board jurisdiction to amend the composition of a bargaining unit, which must be acquired intact by the successor union.

The applicant union applied for certification to represent occasional teachers employed by the respondent school board.

The parties disputed the appropriate bargaining unit description, specifically whether occasional teachers providing French language instruction under Part XI of the Education Act should be included in the same unit as English language occasional teachers.

The respondent also challenged the union's membership evidence, which was collected by mail and verified by telephone.

The Ontario Labour Relations Board first ruled that the membership evidence was acceptable.

On the bargaining unit issue, the Board applied the community of interest test and found that the Part XI occasional teachers shared a sufficiently coherent community of interest with the other occasional teachers.

The Board concluded that an all-inclusive bargaining unit was appropriate and directed that the segregated ballots be counted.

The union filed a complaint alleging the employer violated section 15 of the Labour Relations Act by refusing to execute a collective agreement.

The Board previously found a violation and convened a hearing to determine the remedy.

At the hearing, the employer requested an adjournment and supplementary reasons, both of which the Board denied, noting the delay already incurred and the lack of circumstances beyond the employer's control.

On the issue of remedy, the Board directed the employer to execute the collective agreement that had been agreed upon, with retroactive effect to September 8, 1987, to restore the parties to the position they would have been in but for the violation.

The complainants, three employees at a gypsum mine, refused to work after discovering that the mine's fire alarm system did not function during power failures, which were frequent.

The employer implemented a temporary contingency plan, but the complainants felt it was inadequate and continued to refuse work, leading to their suspension.

The Ontario Labour Relations Board found that the complainants had reasonable grounds to believe the workplace was unsafe and that the employer violated section 24 of the Occupational Health and Safety Act by disciplining them.

The Board ordered the employer to compensate the complainants for all losses suffered as a result of the suspensions.

The complainant was discharged after refusing to lift a heavy hutch, citing concerns about injuring his back.

He filed a complaint alleging his discharge violated section 24 of the Occupational Health and Safety Act, which prohibits reprisals for exercising rights under the Act.

The Board found that the complainant had reason to believe the work was unsafe and that the employer failed to prove the discharge was not a reprisal for his work refusal.

The Board ordered compensation for wages and benefits lost during the thirty-day period following his discharge.

Two unions applied for certification of the respondent's employees.

The incumbent union, UFCW, argued that its existing collective agreement with the predecessor employer automatically renewed and acted as a bar to the applications.

The applicant, CAW, argued that UFCW had abandoned its bargaining rights by failing to enforce the collective agreement for over a year after the respondent purchased the plant.

The Board found that the UFCW's decision not to enforce the agreement was a strategic choice to allow the new employer to establish itself financially, not an abandonment of bargaining rights.

The Board held that the collective agreement automatically renewed and constituted a bar to the certification applications, which were accordingly dismissed.

The applicant employer requested that the Board reconsider its earlier decision declining to issue a declaration that employees engaged in an unlawful strike by refusing to work overtime.

The applicant argued the Board failed to determine if an unlawful strike occurred, relied improperly on estoppel, and that the Vice-Chair improperly conferred with others.

The Board dismissed the reconsideration request, finding it unnecessary to determine if a strike occurred when it had already decided not to grant the requested remedy, and noting the applicant's other grounds did not meet the test for reconsideration.

The complainants, former employees of a closed dairy plant, alleged that their union breached its duty of fair representation under section 68 of the Labour Relations Act by endtailing their seniority when they transferred to another plant, rather than dovetailing it.

The Ontario Labour Relations Board dismissed the complaint, finding that the union faced a difficult choice between competing groups of employees with different legal rights under separate collective agreements.

The Board concluded that the union's decision to endtail the transferring employees' seniority was not arbitrary, discriminatory, or made in bad faith, as it was based on legitimate factors including the employees' legal positions and the employer's stance.

The intervener, Local 293, requested reconsideration of a Board decision directing that the name of Local 1230-10 appear on a pre-hearing representation vote ballot instead of Local 293.

Local 293 argued it was the incumbent union and that an agreement existed to place its name on the ballot.

The Board dismissed the request, noting that pre-hearing votes are designed to be expeditious and that holding a hearing prior to the vote would defeat this purpose.

The Board concluded that the applicant's position regarding the ballot structure should be favoured given the risks involved, and that the successor rights dispute between the locals would be determined after the vote.

The applicant employer sought declarations that the concerted refusal of its employees to work overtime during a period of layoffs constituted an illegal strike under the Labour Relations Act.

The respondent union had a long-standing bylaw, accepted by the employer in practice, prohibiting overtime work while members were laid off.

The Board found that the employees were acting in accordance with a common understanding.

However, the Board declined to decide whether the conduct met the definition of a strike, instead exercising its discretion under section 92 of the Act to refuse the requested declarations and remedies.

The Board reasoned that intervening would not serve the interests of harmonious labour relations given the parties' historical acceptance of the practice and the voluntary nature of overtime under the collective agreement.

The applicant union sought declarations under sections 63 and 1(4) of the Labour Relations Act that Masstron Scale Ltd. was a successor employer to Toledo Scale Division and that the two were related businesses under common control.

The respondents conceded the sale and common control but argued against a declaration binding Masstron to the collective agreement, claiming it would extend rather than protect bargaining rights.

The Board interpreted the collective agreement's scope clause in light of the parties' past practice, finding that the union's bargaining rights covered the geographic territory in question.

The Board granted the section 1(4) declaration, finding it necessary to prevent the erosion of existing bargaining rights, and declared Masstron bound by the collective agreement.

The union applied for certification and invoked section 8 of the Labour Relations Act, requesting certification without a vote due to employer unfair labour practices.

During the organizing campaign, the employer laid off half the bargaining unit upon learning of the union activity.

The employer later recalled the employees and admitted the layoffs violated the Act.

The Board found that the employer's actions were a serious contravention of the Act, making it unlikely that the true wishes of the employees could be ascertained in a representation vote.

The Board also found that the union had adequate membership support for collective bargaining.

The application for certification was granted without a vote.

One Board member dissented, arguing that a supervised representation vote should have been ordered.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employer violated the collective agreement by sub-contracting earthworks to a non-union contractor.

The collective agreement prohibited engaging non-union sub-contractors effective August 1, 1987.

The Board found that the sub-contracting of phase 4 work occurred after the effective date and violated the agreement, as the prior arrangements were too tenuous to constitute an engagement before August 1.

The Board remained seized with respect to remedy.

The applicant union applied for certification and requested a pre-hearing representation vote.

A dispute arose regarding whether the employees of the respondent contractor should be included in a bargaining unit from a related proceeding involving Great Lakes Forest Products Limited.

The Board deferred its decision on whether to consolidate the applications under section 103(3) of the Act until after the pre-hearing representation vote, directing that the vote proceed and the ballot box be sealed.

Two unions applied under section 11 of the Labour Relations Act for directions allowing their representatives access to the respondent's remote bush camps to organize employees.

The incumbent union, which already represented the employees, was permitted to intervene.

The Board held that the only criteria for an access order under section 11 are that employees reside on property owned or controlled by the employer.

The Board rejected arguments that access should only be granted if there are no other reasonable means of communication, or that a more stringent test applies when employees are already represented by another union.

Finding the statutory criteria met, the Board directed the employer to allow access subject to specific conditions to prevent disruption.

The International Woodworkers of America (IWA) applied for certification and requested a pre-hearing representation vote.

The Canadian Paperworkers Union (CPU) filed a subsequent application by way of intervention, also requesting a pre-hearing vote.

The CPU argued that its membership support should be assessed as of its actual application date, or alternatively, that it be allowed to withdraw its request for a pre-hearing vote to convert both applications to regular applications.

The Board rejected these arguments, treating the CPU's application as having been made on the date of the IWA's original application pursuant to section 103(3) of the Labour Relations Act.

Finding that the CPU lacked the requisite 35% membership support on that deemed date, the Board dismissed the CPU's application and directed a pre-hearing representation vote between the IWA and the incumbent union.

The complainant union alleged that the respondent employer violated sections 66 and 80(1) of the Labour Relations Act by refusing to re-hire a former employee for a part-time position because of his union activities and his testimony in previous Board proceedings.

The employer claimed the refusal was due to the employee's limited availability and lack of initiative.

The Board found that the employer failed to discharge its reverse onus under section 89(5) of the Act to prove that its decision was entirely free of anti-union animus, particularly because the employer failed to call the managers who actually made the hiring decision.

The Board drew an adverse inference from this failure and ordered the employer to offer the employee a part-time position and compensate him for lost wages.

The applicant union sought a declaration that the respondent was a successor employer following the purchase of a tavern and transfer of its liquor licence.

The respondent argued that no sale of a business occurred because the transaction involved a mortgagee in possession and the premises had been closed.

Alternatively, the respondent sought to terminate bargaining rights due to a substantial change in the character of the business, citing a shift to a 'goth' theme and new wave music.

The Board found that a sale of a business had occurred, as the essential elements, including the premises and liquor licence, were transferred.

The Board also dismissed the request to terminate bargaining rights, holding that changes in decor and entertainment do not constitute a fundamental difference in the nature of the work.

The respondent was declared bound by the collective agreement.