K. G. O'Neil

The employer alleged that the union obtained its certification by fraud because it estimated 57 employees in the bargaining unit on its application, despite the employer previously stating there were 64.

The Ontario Labour Relations Board applied the test for fraud from Derry v. Peek, which requires a false representation made knowingly, without belief in its truth, or recklessly.

The Board found that the union representatives had an honest belief in their estimate, which was based on a practical assessment by the chief steward.

The Board concluded that the union's conduct did not amount to fraud and upheld the certificate.

The applicant, a contractual employee at a community college bookstore for over three years, complained that the union breached its duty of fair representation and the employer committed unfair labour practices.

The Board found that the applicant was a statutory member of the bargaining unit based on her hours and duties.

The union breached its duty by arbitrarily assuming she had no rights and failing to investigate her status.

The employer breached the Act by keeping her on contractual status to avoid bargaining unit inclusion and by not renewing her contract after she sought union assistance.

The applicants, OPSEU and AMAPCEO, challenged the employer's determination that several positions within the Ontario Financing Authority (OFA) were excluded from their respective bargaining units under the amended Crown Employees Collective Bargaining Act (CECBA).

The employer argued that the positions were excluded under paragraph 14 of section 1.1(3) of CECBA, which excludes persons involved in borrowing, investing, or managing the assets and liabilities of the Consolidated Revenue Fund, or providing necessary support services.

The Ontario Labour Relations Board found it had jurisdiction to determine the employee status.

The Board held that Customer Service Representatives at the Province of Ontario Savings Office (POSO) were not excluded because they did not make financial commitments or decisions.

However, the Board found that the Manager of Administrative Services, Financial Officer - Swaps, Project Manager (Capital Markets Programmer), and Bank Funding & Fiscal Agency Supervisor were excluded as they either managed assets and liabilities or provided specialized services necessary to those activities.

The applicant, a social worker, alleged she was terminated and subjected to pre-termination reprisals by her employer, a hospital, after complaining of sexual harassment by her supervisor.

The hospital argued the termination was strictly due to financial restructuring and that sexual harassment falls outside the Occupational Health and Safety Act.

The Board found it had jurisdiction to hear the reprisal complaint, as the applicant genuinely believed the harassment was a workplace hazard.

However, the Board dismissed the complaint on the merits, finding the termination was a bona fide layoff driven by budget cuts and that the alleged pre-termination incidents did not constitute penalties or reprisals.

The union applied for interim relief under section 98 of the Labour Relations Act, 1995, seeking an order that the responding parties produce financial and lease information necessary for collective bargaining.

The responding parties objected to producing lease agreements, citing confidentiality and competitive sensitivity.

The Board found an arguable case on the merits and that the balance of harm favoured granting the order.

The Board directed the responding parties to produce the requested information, subject to confidentiality restrictions, to facilitate bargaining for a second collective agreement.

The applicant union sought a declaration of successor rights, arguing that the opening of a Ruth's Chris steakhouse in the hotel premises formerly occupied by Trader Vic's constituted a sale of a business under section 69 of the Labour Relations Act.

The union argued that the downtown location was a key asset transferred to the new restaurant.

The Board found that the transaction was merely a lease of space and that no part of the predecessor's business, other than the location itself, was transferred.

The application was dismissed.

The union applied for certification and won a representation vote.

The employer challenged the vote on three grounds: that the 40% threshold for ordering the vote should have been based on the actual number of employees rather than the union's estimate; that the union committed fraud by intentionally understating the number of employees in its application; and that providing ballots only in English and French violated the section 15 Charter rights of an employee who misunderstood the ballot due to language difficulties.

The Board dismissed the 40% threshold and Charter arguments, finding that the statute permits reliance on the union's estimate and that language difficulties do not constitute discrimination under section 15.

However, the Board found an arguable case for fraud and scheduled a hearing on that issue.

The applicant trade union applied for certification to represent a bargaining unit of employees at the responding party's store.

The Board found that the applicant is a trade union and that more than 40% of the individuals in the proposed bargaining unit were members of the union.

The Board ordered a representation vote.

The responding party argued that the application should be dismissed due to a one-year bar imposed on a prior application by a related local union, and requested that the ballot box be sealed pending determination of this issue.

The majority of the Board directed that the ballots be counted, with the bar issue to be dealt with later if necessary.

One Board member dissented, arguing the ballot box should remain sealed until the bar issue was decided.

The responding party employer brought a preliminary motion to dismiss the applicant's complaint under the Occupational Health and Safety Act (OHSA) for want of a prima facie case.

The applicant alleged she was terminated as a reprisal for reporting sexual harassment by her supervisor, arguing that sexual harassment constitutes a workplace hazard under the OHSA.

The employer argued the OHSA only covers physical hazards and that the Human Rights Code is the proper forum.

The majority of the Board dismissed the motion, finding it was not plain and obvious that the complaint would fail, as the OHSA's definition of 'hazard' is broad and could arguably encompass sexual harassment.

A dissenting member would have granted the motion, finding the OHSA inapplicable to sexual harassment.

The Christian Labour Association of Canada (CLAC) applied for certification to displace the incumbent union, Local 47, as the bargaining agent for roofers at Covertite Eastern Limited.

Local 47 alleged that the employer and working foremen unlawfully supported CLAC's organizing campaign.

The Ontario Labour Relations Board found that the employer, motivated by a desire for lower labour rates, clearly communicated its preference for CLAC to the employees and linked future work opportunities to supporting CLAC over Local 47.

Concluding that this constituted employer support under section 15 of the Labour Relations Act, the Board dismissed CLAC's certification application.

The union filed a complaint alleging the employer breached its duty to bargain in good faith when its Board of Directors refused to ratify a tentative collective agreement.

The union argued the employer's negotiating team had apparent authority to bind the corporation.

The Ontario Labour Relations Board found that the union knew the agreement was subject to ratification, so there was no apparent authority.

The Board also found the employer's refusal to ratify was justified by a sudden change in financial circumstances.

However, the Board held that the employer breached its duty to bargain in good faith by failing to provide its negotiating team with an adequate mandate during bargaining.

The employer was ordered to develop an unconditional proposal and return to the bargaining table.

The applicant filed a third application for termination of bargaining rights shortly after a previous application was dismissed.

The union argued the application was untimely under the newly enacted Interim Rules of Procedure and that the Board should refuse to entertain it due to the multiplicity of applications.

The Board relieved against the strict application of the new rules, finding the application timely.

However, the Board exercised its discretion to refuse to entertain the application, balancing the employees' right to test union support against the need for stability in the collective bargaining relationship.

The Board imposed a one-year bar on further applications by the applicant.

The applicant filed a complaint under the Occupational Health and Safety Act alleging that she was sexually harassed at work, which caused her to feel unsafe, and that her subsequent termination was a reprisal for reporting the harassment.

The responding party brought a preliminary motion to dismiss the complaint for want of a prima facie case, arguing that sexual harassment is not covered by the Act.

The majority of the Board dismissed the preliminary motion, finding that the matter ought not to be dismissed without a hearing.

A dissenting member argued that the Board lacks jurisdiction because sexual harassment falls under the Human Rights Code, not the Occupational Health and Safety Act.

The applicant union applied for certification of a new bargaining unit of continuing education instructors and sought to combine it with an existing unit that had not yet reached a first collective agreement.

The employer opposed the combination, arguing it would cause serious labour relations problems and instability.

The Board granted the combination, finding that the alternative of two small, fragmented units would be more problematic than integrating the new group into the ongoing first contract arbitration.

A dissenting board member would have refused the combination.

The Minister referred a question to the Board regarding whether Maison Mere des Soeurs de la Charite d'Ottawa is a 'hospital' under the Hospital Labour Disputes Arbitration Act.

The applicant union argued that the institution's infirmary, which cares for aging nuns, qualifies it as a hospital.

The responding party argued it is the headquarters of a religious order and a private residence for its members, not an institution operated for the care of the aged.

The Board advised that the institution is not a hospital or home for the aged within the meaning of the Act, as its primary purpose is to house members of the religious order and serve as a base for their work, rather than to operate as a care facility.

The applicant union brought an application under section 73.1 of the Labour Relations Act regarding a strike of counter attendants and car jockeys.

The responding party employer challenged whether the strike vote met the statutory requirements for ample opportunity to vote and secrecy of the ballot.

The Board found that the notice provided was sufficient and that the voting arrangements, while not perfect, provided a secret ballot process that employees could opt out of, satisfying the requirements of the Act.

As the strike had ended, the matter was terminated.

The applicant, who operated an insulation business with his wife, applied to terminate the union's bargaining rights.

The union brought a non-suit motion, arguing the applicant was a principal of the company and that the application was not voluntary.

The Board granted the non-suit motion and dismissed the application, finding that even if the applicant were considered an employee, the decision to bring the application was made jointly with his wife, who managed the business.

Therefore, the application did not represent a voluntary expression of employee wishes free from management influence.

The union applied to combine a newly certified maintenance bargaining unit with two pre-existing units (a craft unit of pressmen and a departmental unit of truck drivers) at the employer's newspaper operation.

The employer opposed the combination, arguing that section 6(3) of the Labour Relations Act precluded combining a craft unit with non-craft units.

The Ontario Labour Relations Board held that the mandatory nature of section 6(3) at the point of certification does not override the Board's discretion to combine units under section 7.

Finding that the combination would facilitate viable and stable collective bargaining and reduce fragmentation without causing serious labour relations problems, the Board ordered the three units combined.

One Board member dissented.

The applicant union filed an application under section 64.2 of the Labour Relations Act alleging a deemed sale of a business from the predecessor employer to the responding party security services company.

The responding party failed to file a response by the terminal date, despite acknowledging receipt of the notice.

The union requested that the Board apply Rule 19 of the Rules of Procedure to deem the facts accepted and grant the application without a hearing.

The Board found that the pleaded facts established a deemed sale of a business, as the predecessor ceased providing security services at the site and the responding party subsequently provided substantially similar services.

The Board applied Rule 19, deemed the facts accepted, and granted the application, declaring that a sale of a business had occurred and that the union's bargaining rights continued.

The union applied for certification.

The employer alleged that union organizers and supporters made material misrepresentations and threats to job security during the organizing campaign, specifically telling employees they would not be protected if they did not sign union cards.

The Board found that paid union organizers did not make such statements.

While a fellow employee may have made ambiguous statements, they did not amount to intimidation or a material misrepresentation that would invalidate the membership evidence.

The Board granted an interim certificate.