Kevin M. Burkett

The complainant, a registered nurse with 27 years of service, was suspended pending an investigation into her conduct.

At a disciplinary meeting, she was given the choice to resign or be terminated.

Her union representative, who was also her charge nurse and had a conflict of interest, was instructed by a union official to only take notes and not speak.

The hospital refused the complainant's requests to adjourn the meeting to obtain proper representation.

The complainant signed a letter of resignation, which a subsequent arbitration board found to be voluntary, precluding a hearing on the merits of her termination.

The Ontario Labour Relations Board found that the union breached its duty of fair representation under section 68 of the Labour Relations Act by acting arbitrarily and discriminatorily in failing to provide meaningful representation.

The Board also found that the hospital violated section 64 by intentionally interfering with the complainant's right to union representation.

Exercising its broad remedial authority under section 89(4), the Board directed that the complainant's termination grievance be heard on its merits, notwithstanding the prior arbitration award.

The union filed an unfair labour practice complaint and a related employer application after Kennedy Lodge, a nursing home, announced it would contract out the work of its unionized nurse's aides to Medox, an outside agency, resulting in the termination of approximately 92 bargaining unit employees.

Kennedy Lodge cited severe financial difficulties and the need to reduce wage costs as the reasons for the decision.

The Ontario Labour Relations Board found that Kennedy Lodge would retain fundamental control over the nursing care provided by the aides, meaning Kennedy Lodge would remain the true employer of the aides supplied by Medox.

Alternatively, the Board found that Kennedy Lodge and Medox were related employers under section 1(4) of the Labour Relations Act.

The Board concluded that the arrangement was not a valid contracting out under the collective agreement and that replacing bargaining unit employees with non-union personnel to avoid collective bargaining obligations violated sections 50, 64, and 66 of the Act.

The Board issued declarations binding Kennedy Lodge and Medox to the collective agreement.

A dissenting member would have found the subcontracting valid and dismissed the complaints.

The applicant union sought leave to withdraw its application for certification.

The respondent employer requested that the application be dismissed and a one-year bar be imposed on subsequent applications, citing two previous unsuccessful applications.

The Ontario Labour Relations Board noted that the first application involved a small maintenance unit, while the current and immediately preceding applications involved a much larger all-employee unit.

The Board found that the applications did not pertain to the same employee group to a degree that would cause sufficient unrest to warrant a bar.

The Board dismissed the application but declined to impose a bar on future applications.

The applicant union sought a declaration that Thorn Press and Stevens Reproductions were related employers under section 1(4) of the Labour Relations Act, or alternatively that a sale of a business had occurred under section 63.

Thorn Press had closed its lithographic department and allowed Stevens Reproductions to operate out of its premises using its equipment to perform the bulk of its lithographic work.

The Board found that Thorn retained effective control over the lithographic business carried on by Stevens Reproductions.

The Board exercised its discretion to declare the two entities one employer for the purposes of the Act.

The applicant trade union applied for certification for four bargaining units at the respondent's retail store in Brampton.

The parties disputed the geographic scope of the units and the exclusion of personnel staff.

The Board defined the units to include all retail stores in Brampton and excluded only the existing personnel supervisor.

Objecting employees requested a representation vote, alleging intimidation and coercion by union supporters and security staff.

The Board found that the conduct of fellow employees was normal campaign byplay and that the security staff's actions did not unlawfully interfere with employee rights.

Given that over 80% of employees had signed membership cards, the Board certified the union without a vote.

The complainant union alleged that the employer violated the Labour Relations Act by contracting out cleaning work shortly after certification and during collective bargaining.

The union argued this was motivated by anti-union animus and that the employer breached its duty to bargain in good faith by tabling wage rates for cleaners while intending to contract out the work.

The Ontario Labour Relations Board dismissed the complaint, finding that the employer's decision was part of a broader operational review commenced before the union's arrival and was motivated by substantial cost savings.

The Board also held that the employer satisfied its duty to disclose by providing written notice of its intention to contract out prior to bargaining.

The applicant filed an application for certification.

The Board required the applicant to prove its status as a trade union under the Labour Relations Act.

Evidence showed the applicant's constitution was adopted after the application was filed, and membership evidence predated the constitution without reaffirmation.

The Board found the applicant was not a trade union at the time of filing and dismissed the application.

The complainant filed a duty of fair representation complaint against the union 18 months after the arbitration hearing concerning his discharge.

The union and the intervener employer raised a preliminary objection regarding the delay.

The Board applied the criteria from the City of Mississauga decision and found that the delay was substantial and without compelling reason.

Given the potential prejudice to the union, particularly the fading recollection of the union representative who had disposed of his notes, the Board declined to exercise its discretion to inquire into the merits and dismissed the complaint.

The complainant union, Local N-1, filed a jurisdictional dispute complaint seeking the assignment of its members to work on a newly installed Harris N-900 web offset press.

The employer had assigned the work to members of the respondent union, Local 211.

The Board considered factors including skill and training, employer practice, area practice, and collective agreement provisions.

Finding that the offset process requires specific skills that Local 211 members possessed through experience and training, and noting the employer's historical assignment of offset work to Local 211, the Board confirmed the employer's assignment of the work to Local 211.

The complainant union filed an unfair labour practice complaint alleging that the respondent employer violated the Labour Relations Act by refusing to provide the salaries paid to each named individual in the bargaining unit prior to collective bargaining.

The employer argued that individual employees might not want their salaries disclosed.

The Ontario Labour Relations Board held that the employer's refusal constituted a breach of the duty to make every reasonable effort to conclude a collective agreement under section 15 of the Act, as the union required the information to formulate proposals and administer the collective agreement.

The Board directed the employer to provide the requested salary information.

The applicant union requested that the Board file its previous decision ordering the respondent employer to pay wages and vacation pay with the Supreme Court of Ontario, as the employer had failed to comply and was in receivership.

The Board noted its practice of requiring proof of non-compliance, but since the respondent did not reply to the allegation of non-compliance, the Board was satisfied that there was a failure to comply.

The Board ordered the determination to be filed with the Registrar of the Supreme Court of Ontario pursuant to section 89(6) of the Labour Relations Act.

The complainant union filed an unfair labour practice complaint alleging that the incumbent union breached sections 3 and 70 of the Labour Relations Act by posting a notice on a bulletin board threatening to charge members who supported the complainant's organizing campaign.

The Board dismissed the complaint, finding that the notice did not threaten the employees' continued employment, as section 46(2) of the Act protects employees from discharge if they are expelled from an incumbent union for supporting a rival union.

The threat of expulsion from membership alone did not constitute intimidation or coercion within the meaning of section 70.

The respondents raised a preliminary objection to dismiss a section 68 complaint due to the complainant's delay in filing.

The Board ruled that the complaint would be heard on its merits.

However, due to the delay, the complainant was denied monetary compensation for the period between February 1, 1982, and April 14, 1983.

The respondents were held liable for compensation during a sine die adjournment because they failed to stipulate otherwise as a condition of the adjournment.

The union filed a grievance and requested the Minister to appoint an arbitrator under section 45 of the Labour Relations Act.

Subsequently, the employer referred the same grievance to the Ontario Labour Relations Board under section 124.

The Minister referred the question of his authority to appoint an arbitrator to the Board.

The Board held that because the employer was entitled to refer the grievance under section 124, and because the Board's jurisdiction under section 124 was established before the Minister appointed an arbitrator under section 45, the Board had exclusive jurisdiction.

Furthermore, any conflict between the two sections is resolved by section 118, which provides that the construction industry provisions (section 124) prevail.

The applicant union filed a grievance under section 124 of the Labour Relations Act.

At the scheduled hearing, the respondent employer failed to appear.

Two principals of the respondent company, who had been properly served with subpoenas and conduct money by the applicant, also failed to attend.

The applicant requested bench warrants for their arrest.

The Board, relying on its powers under section 103(2)(a) of the Act to enforce the attendance of witnesses in the same manner as a court of record in civil cases, issued warrants for the arrest of the two defaulting witnesses and adjourned the hearing.

In a consolidated application for certification and unfair labour practice complaint, the union requested that the employer be directed to proceed first due to the reverse onus provisions of section 89(5) of the Labour Relations Act.

The employer argued that the union should proceed first, consistent with the Board's past practice in section 8 applications.

The Board exercised its discretion and directed the employer to proceed first, noting that the bulk of the evidence would relate to the section 89 allegations for which the employer bears the legal burden.

Board Member Wightman dissented, arguing that the existing practice of requiring the union to proceed first should be maintained.

The applicants filed an application under section 57 of the Labour Relations Act for a declaration terminating the respondent union's bargaining rights.

The respondent argued the application was untimely under section 12 of the Hospital Labour Disputes Arbitration Act and section 57 of the Labour Relations Act.

The Board found that because the employer is a hospital and a conciliation officer had been appointed, an application for termination can only be made during the open period of a collective agreement.

As no collective agreement had yet been concluded, the application was untimely.

The Board dismissed the application without a hearing pursuant to Rule 71.

The applicant union sought a declaration under section 63 or section 1(4) of the Labour Relations Act that Banister Continental Ltd. was a successor or single employer following its amalgamation with Pitts Engineering Construction Limited.

The union argued this was necessary to protect its bargaining rights from future non-union spin-offs.

The respondents argued that declaring the parent company the successor would improperly expand the union's bargaining rights to other divisions.

The Board held that the purpose of sections 1(4) and 63 is to preserve, not extend, bargaining rights.

The Board declared that Pitts Engineering Construction, a division of Banister Continental Ltd., is the successor employer.

The applicant school board sought a declaration that the issuance of 'pink letters' by the respondent teachers' federations, advising members not to apply for or accept employment in the board's continuing education program (night school and summer school), constituted an unlawful strike.

The Ontario Labour Relations Board dismissed the application.

It held that the continuing education program was not a 'school program' within the meaning of the School Boards and Teachers Collective Negotiations Act, and therefore the concerted refusal to apply for positions did not constitute a strike under that Act.

Furthermore, the Board found that the teachers were not employees in respect of the continuing education program and had no obligation to staff it, meaning their actions did not constitute a strike under the Labour Relations Act.

The complainant trade union alleged that the respondent security company, acting on behalf of the struck employer, committed unfair labour practices by planting an undercover investigator within the bargaining unit during a lengthy strike.

The investigator posed as a striking employee, reported to the employer on union bargaining strategy and internal dissension, fostered dissent among the strikers, and engaged in unlawful acts on the picket line.

The Ontario Labour Relations Board found that the respondent's actions constituted a flagrant violation of section 64 of the Labour Relations Act by interfering with the administration of the trade union and the representation of employees.

The Board held that infiltrating a trade union during or in anticipation of a strike is a per se violation of the Act.

The Board ordered the respondent to compensate the union for half of the wages and strike pay lost due to the five-week prolongation of the strike caused by its actions, and to provide written notice of its violation to any trade union it is retained to act against in the future.