Lee Shouldice

The union filed construction industry grievances against two employers for failing to pay interest charges on late remittances to trust funds, as required by the collective agreement.

The employers raised preliminary objections, primarily arguing that the grievances were untimely.

The Board found that the trust fund administrator's 'dunning letters' did not constitute formal grievances and that the actual grievances were filed well beyond the time limits specified in the collective agreement.

The Board declined to exercise its discretion under section 48(16) of the Labour Relations Act to extend the time limits, finding no reasonable grounds to do so, and dismissed the grievances in their entirety.

The union applied for certification and filed an unfair labour practice complaint against the employer, an electrical contractor.

During the organizing campaign, the employer's principals made promises of wage increases and benefit plans if the union was defeated, and threatened that unionization would lead to a loss of jobs and 'early retirement'.

The Board found these actions violated sections 70, 72(c), and 76 of the Labour Relations Act, 1995.

Concluding that the widespread threats to job security made it unlikely that a representation vote would reflect the employees' true wishes, and that no other remedy could counter these effects, the Board granted automatic certification under section 11(1) of the Act.

The applicant union filed an application for certification.

Due to an intervention based on a voluntary recognition agreement that was later found to have no legitimate basis, the representation vote was delayed by a month.

The union requested an order allowing it to mail materials to the responding party's employees using employer-produced labels to maintain the confidentiality of the employees' addresses.

The responding party opposed the request.

The Board granted the union's request, finding that the delay in the vote justified providing the union with the opportunity to communicate with the voters.

The Board directed the employer to produce the labels and the parties to jointly arrange the mailing at the applicant's expense.

The applicants, two construction trade unions, applied for certification to represent employees working on a steam pipeline at the Bruce Energy Centre.

The responding party, Ontario Hydro, raised a preliminary objection that the employees were already represented by the applicants under existing Electrical Power Systems Construction Association (EPSCA) collective agreements.

The central issue was whether the work was performed 'on Ontario Hydro property' within the meaning of the EPSCA agreements.

The Board found that Ontario Hydro did not have a sufficient property interest in the lands where the work was performed to bring it within the scope of the EPSCA agreements.

Consequently, the Board ruled that the employees were not represented under the EPSCA agreements on the application date, allowing the certification applications to proceed.

The union filed unfair labour practice complaints alleging that the employer violated section 72(a) of the Labour Relations Act, 1995 by failing to offer employment to six union members at a new facility following a plant closure.

The six complainants were all past or present members of the union executive.

The employer claimed the decisions were based on performance evaluations and attitude.

The Board found that the employer failed to discharge its burden of proving that the decisions were completely free of anti-union animus, noting inconsistencies in the employer's explanations and evidence of anti-union sentiment.

The applications were allowed.

The Labourers' union brought a motion arguing that a prior Board decision (the Surdykowski decision) had finally determined that crew leaders in the residential roofing industry are employers, and that this finding was binding in the current proceedings under the doctrine of res judicata.

The Carpenters opposed the motion.

The Board dismissed the motion, finding that the prior determination regarding crew leaders generally was not fundamental to the substantive decision in that case, and that there was no identity of parties or privies between the Carpenters and the parties in the prior proceeding.

The Board also declined to apply the doctrine strictly for policy reasons, ensuring the Carpenters' right to a hearing on the merits regarding the employee status of crew leaders.

The applicant union filed a jurisdictional dispute concerning the assignment of stripping reusable formwork at two construction sites.

The work was claimed by both the applicant and the responding union.

The Ontario Labour Relations Board found that the employer had not made a clear assignment and that area and employer practices were mixed.

The Board concluded that the work ought to have been assigned to a composite crew of labourers and carpenters, consistent with the employer's past practice, and directed the parties to provide submissions on the appropriate composition of the crew.

The applicant developer sought a declaration and direction under section 144 of the Labour Relations Act, 1995, alleging that the responding party trade union threatened an unlawful strike.

The union's business representative had threatened to picket the applicant's construction site if a non-union masonry contractor continued to perform work.

The Board found that the threat to picket constituted a real threat to call or authorize an unlawful strike, as union members would likely refuse to cross the picket line.

The Board issued a cease and desist order against the union.

The Board previously certified the applicant union and directed counsel for the responding party and the objecting employees to show cause why their conduct during the hearing should not be reported to the Law Society of Upper Canada or stated as a case of contempt to the Divisional Court.

Prior to the scheduling of the show cause hearing, both counsel submitted letters of apology to the Board.

The Vice-Chair accepted the apologies, though rejecting the explanations for the conduct, and concluded that a show cause hearing was no longer necessary.

The proceeding was terminated.

The applicant international union applied to extend its trusteeship over the respondent local union for a further 12 months under s. 89(2) of the Labour Relations Act, 1995.

Pending the hearing of the main application, the applicant requested an interim extension of the trusteeship.

The Board declined to grant the interim extension, noting the delay in bringing the application, the lack of assurances regarding upcoming elections, and the inherent prejudice to those opposing the extension.

The Board directed that notice be given to the local union members and listed the matter for hearing alongside related unfair labour practice complaints.

The United Food & Commercial Workers International Union applied for certification of employees at a Canadian Tire franchise.

The employer and a group of objecting employees raised numerous preliminary objections, including allegations of abuse of process, improper panel composition, deficient membership evidence, and managerial interference in the organizing drive.

The Board dismissed most of the objections, finding that the parent union could rely on dual-purpose membership cards and that the union was not required to contact all employees.

However, the Board found that the union's unfair labour practice complaint was filed for tactical reasons and dismissed it as an abuse of process.

The Board also found that the involvement of the Head Cashier in the organizing drive rendered the membership cards of three cashiers who reported to her unreliable, though it did not taint the rest of the evidence.

Finally, due to the persistently disruptive and disrespectful conduct of counsel for the employer and the objecting employees, the Board directed them to attend a show cause hearing regarding potential contempt or a report to the Law Society.

A certificate was issued for the bargaining unit.

The applicant union referred a construction industry grievance to the Board, alleging the employer failed to pay the grievor the proper apprentice wage rate.

The grievance was filed and referred to arbitration well beyond the time limits set out in the collective agreement.

The Board considered whether to extend the time limits under section 48(16) of the Labour Relations Act, 1995.

Finding no reasonable explanation for the union's eight-and-a-half-month delay in referring the grievance to arbitration after receiving the employer's response, the Board declined to extend the time limits and dismissed the grievance.

The applicant union requested reconsideration of a Board decision that denied a second representation vote and an oral hearing.

The union argued that the original vote was held on a Friday, a day when the employees did not work, resulting in only one of five eligible voters casting a ballot.

The Board dismissed the request, finding that an oral hearing was unnecessary as all factual propositions asserted by the applicant were accepted as true.

The Board further held that it is the responsibility of the party desiring a vote to be scheduled on a particular date to advise the Board, and the failure of employees to attend the vote did not warrant scheduling a second voting day.

The applicants filed two applications to terminate the bargaining rights of the responding trade union in the construction industry.

During the proceedings, the Labour Relations Act was amended by Bill 7.

The Board held that under the new Act, applicants are no longer required to establish the voluntariness of petition documents prior to a representation vote, unless the union specifically pleads and proves employer initiation or interference under section 63(16).

The Board also held that the principle from April Waterproofing Ltd., which excludes illegally hired employees from the bargaining unit for voting purposes, remains unaffected by the Bill 7 amendments.

The Board declared the union's bargaining rights terminated in one file and directed the other to continue for evidence on the illegal hiring issue.

The applicant union referred two construction industry grievances to the Board, alleging the responding party employer violated the subcontracting provisions of the Provincial Agreement.

The employer disputed the Board's jurisdiction, arguing the work fell outside the industrial, commercial and institutional (ICI) sector and requested a sector determination.

The Board held that it had jurisdiction to arbitrate the grievances and that a sector determination was unnecessary, as the Provincial Agreement's terms extended to all sectors where the union held bargaining rights with the employer.

The applicant Labourers' union brought a jurisdictional dispute application regarding the assignment of concrete forming work on a parking garage project.

The employer had assigned the work to a composite crew of Labourers and Carpenters.

The Carpenters' union claimed exclusive jurisdiction over the work.

The Board considered various criteria, finding that area practice was inconsistent but that the employer's past practice strongly favoured the composite crew assignment.

The Board declined to hold a full hearing to hear oral evidence on employer practice, noting that jurisdictional disputes are determined by consultation based on filed briefs.

The Board confirmed the employer's assignment of the work to the composite crew.

In a referral of a construction industry grievance to arbitration, the Board considered whether the Metropolitan Toronto Road Builders Association (MTRBA) should be granted status to intervene.

The grievance involved allegations that the responding party failed to properly pay union members for overtime work on the Highway 407 project.

The Board found that the MTRBA did not have status to intervene as of right, as it was not bound by the specific Project Agreement in question.

However, the Board exercised its discretion to grant the MTRBA intervenor status to avoid a multiplicity of proceedings and ensure the decision would bind all relevant subcontractors performing work on the project.

A preliminary motion was brought to determine whether Local 73 had properly withdrawn from its parent International Union.

The Board applied the standard from a prior court decision, finding that the constitution and by-laws implicitly required rigorous notice and secret ballot voting procedures for a withdrawal to be valid.

Because the local union members voted by a show of hands rather than a secret ballot, the purported withdrawal was ineffective at law.

Consequently, the successorship application was dismissed, and the certification and combination applications were directed to proceed in the name of Local 73 under the International's trusteeship.

The union filed an unfair labour practice complaint alleging that the employer terminated four employees because they acted as inside organizers for the union.

The employer claimed the terminations were part of a normal course layoff due to restructuring and performance issues.

During the hearing, the employer sought to call a witness in reply to contradict the union's evidence, which the Board denied as improper case-splitting.

Applying the reverse onus under section 91(5) of the Labour Relations Act, the Board found the employer failed to establish that the decision to terminate the four organizers was free of anti-union animus.

The Board ordered the immediate reinstatement of the employees with full compensation.

During a hearing for an unfair labour practice complaint, the applicant union sought to cross-examine the employer's former solicitor regarding communications with the employer about an alleged plan to contract out delivery services.

The employer objected on the basis of solicitor-client privilege.

The union argued that the privilege had been waived by the employer calling the solicitor as a witness, or alternatively, that the communications fell under the crime or fraud exception.

The Board upheld the objection, finding that the employer had only waived privilege with respect to a specific settlement discussion, and that the crime or fraud exception did not extend to alleged breaches of the Labour Relations Act.