Louisa M. Davie

The Ontario Labour Relations Board conducted a sector determination to decide whether the construction of a stand-alone raw sewage pumping station fell within the industrial, commercial and institutional (ICI) sector or the sewer and watermain sector.

Applying an end-use analysis, the Board found that the pumping station did not process or treat sewage, but merely moved it along the sewage lines to a treatment facility.

Consequently, the Board concluded that the end use of the pumping station placed it within the sewer and watermain sector.

The applicant Boilermakers union filed a jurisdictional dispute regarding the staffing of tool cribs at two construction projects in Sarnia.

The employers had assigned the work to the Boilermakers.

The Labourers union claimed the work based on area practice.

The Ontario Labour Relations Board, by a majority, overturned the employers' assignment and awarded the work to the Labourers, finding that the overwhelming area practice in Board Area 2 favoured assigning tool crib staffing on multi-trade jobs to the Labourers.

A dissenting Board member would have upheld the employers' assignment.

The union referred a grievance to the Ontario Labour Relations Board regarding the employer's construction activities.

The employer raised a constitutional issue, arguing that bank construction falls under federal jurisdiction, and alternatively argued that the union had abandoned its bargaining rights or was estopped from asserting them due to years of inactivity.

The Board found the constitutional issue was res judicata and that construction of a bank is not integral to the core banking function, thus falling under provincial jurisdiction.

The Board held that the union had not abandoned its bargaining rights, as the employer had largely used union forces.

However, the Board found the union was estopped from enforcing the sub-contracting provisions of the collective agreement due to its 15-year silence, but held that the estoppel would end with the issuance of this decision.

The grievance was dismissed.

The employer, Algoma University College, filed a jurisdictional dispute complaint regarding the assignment of library reference desk duties and library tours.

The work had been assigned to members of both the Staff Association and the Faculty Association.

The Board found that the work was normally performed by members of both associations and that there was a clear overlap in jurisdiction.

Considering past practice, area practice, and factors of economy and efficiency, the Board confirmed the employer's assignment of the disputed work to members of both associations.

The applicant union applied for certification to represent a bargaining unit of the employer's employees.

The sole issue in dispute was whether a specific employee should be included on the list of employees for the purpose of determining the union's membership support.

The employee had been laid off prior to the application date but continued to attend an employer-paid training course related to his job duties.

The Board found that the employee was 'at work' while attending the course and was therefore properly included on the list of employees.

The Board ordered a representation vote.

The union referred a grievance to the Board alleging the employer violated the collective agreement by failing to offer overtime work to an employee because he had previously filed a grievance.

The Board found that while the employer's general method of assigning overtime was reasonable and consistent with industry practice, its specific decision to exclude the grievor from a crew where all other members were offered overtime was unexplained and discriminatory.

The Board declared that the employer violated the collective agreement but declined to order monetary damages due to insufficient evidence, remaining seized of the issue.

The applicant union alleged that a sale of a business occurred and that the responding parties were related employers under common control or direction.

The union argued that a 'key person' from a unionized company left and subsequently started a new, non-unionized company in the same industry, thereby transferring the 'business'.

The Board found that the individual was no longer a 'key person' at the time of his departure, as the original company continued to grow and prosper without him.

Furthermore, due to a significant hiatus between his departure and the formation of the new company, there was no common control or direction.

The application was dismissed.

The applicant trade union sought declarations under section 64 and subsection 1(4) of the Labour Relations Act that several corporate responding parties constituted a single employer and were bound by the provincial collective agreement.

Several responding parties failed to file responses or produce documents as ordered by the Board.

The Board drew adverse inferences from this failure.

The Board found that Gaspo, Central Forming, Ashworth, and Pamina carried on related activities under common control or direction and declared them to be one employer bound by the collective agreement.

The application was dismissed with respect to Altracon, as the Board found no common control or direction or sale of a business involving that entity.

The related employers were held jointly and severally liable for damages flowing from the current grievances, but not for past damages.

The applicant trade union requested leave to withdraw its jurisdictional dispute complaint.

The responding trade union opposed the withdrawal, arguing the Board should proceed to determine the merits of the work assignment dispute.

The Board noted its discretion under section 91(1.1) of the Labour Relations Act and found that the underlying grievance remained unresolved and the dispute over the correct assignment of work continued to exist.

The Board refused to grant leave to withdraw the complaint and referred the matter to the Registrar to schedule a consultation.

The intervenor, ADM-Agri Industries Limited, requested reconsideration of a 1991 Board decision certifying the applicant union for employees of McCarthy Milling Limited, arguing the Board lacked constitutional jurisdiction because the flour mill was a federal work.

The union brought a preliminary motion to dismiss the reconsideration request.

The Board granted the union's motion, declining to entertain the reconsideration request.

The Board noted that the union and ADM had subsequently negotiated a collective agreement, meaning the bargaining rights from the original certificate had merged into the agreement.

Reconsidering the 1991 certificate would not resolve the ongoing constitutional issues between the union and ADM, and the Board declined to address complex constitutional questions in the context of a delayed reconsideration request.

The responding party employer brought a motion to defer the applicant union's grievance referral pending the filing of a jurisdictional dispute complaint under section 93 of the Labour Relations Act.

The grievance concerned the employer's assignment of piping removal work to unrepresented labourers rather than to members of the applicant union.

The Board found that while it had jurisdiction to entertain the matter as a jurisdictional dispute, it was not appropriate to defer the grievance at this stage.

The dispute primarily involved the interpretation of the collective agreement, and resolving the grievance might dispose of the jurisdictional issue entirely.

The motion to defer was dismissed.

The applicant trade union referred a grievance to the Board under section 126 of the Labour Relations Act, seeking damages for the employer's misassignment of work to another union.

The Board had previously ruled in a jurisdictional dispute that the work should have been assigned to the applicant.

The employer argued that Article 8.6 of the collective agreement precluded the Board from awarding damages for a first misassignment of work.

The Board agreed, finding that the collective agreement language prohibited the hearings panel from awarding damages unless specific exceptions applied, which were not met in this case.

The Board declared that the employer violated the collective agreement but awarded no damages.

The applicant Ironworkers Local 700 filed a jurisdictional dispute complaint under section 93 of the Labour Relations Act regarding the assignment of work on a material handling system at the D.N.N. Hot Dip Galvanizing Line #1 in Windsor, Ontario.

The Board held a consultation and determined that the work in dispute was a completely integrated material handling system, not merely a conveyor system or production equipment.

Having regard to prevailing area practice and previous Board decisions, the Board ordered that the work be assigned to a composite crew consisting of equal numbers of Ironworkers and Millwrights performing the work functions interchangeably.

The order was made binding on all named parties and applied to future jobs undertaken in Board Area #1.

The union applied for interim relief under section 92.1 of the Labour Relations Act, alleging that the employer changed the work schedules of fragrance associates as a reprisal for their participation in a grievance arbitration.

The union sought an order restoring the previous work schedule and an order requiring the employer to post a notice of employee rights.

The Board dismissed the request to restore the work schedule, finding that the harm to the employees was primarily financial and could be remedied if the main complaint succeeded, whereas an interim order would significantly intrude on the employer's management rights and the collective agreement.

However, the Board granted the request for a posting, directing the employer to post a notice advising employees of their rights under the Act to prevent potential labour relations harm without prejudicing the employer.

The applicant union applied for certification of security guards at a condominium site.

Shortly after the application date, Meadowvale Security Guard Services Inc. acquired the contract for the site and became the new employer.

Meadowvale already had a collective agreement with the intervenor union (CLAC) that contained a broad recognition clause covering future sites.

The Board declined to proceed with the certification application, finding that the complex issues regarding the validity of the collective agreement, intermingling of employees, and representation rights could only be properly addressed if a successor employer application under section 64 of the Labour Relations Act was filed.

In an application for certification of a large unit of security guards, the parties agreed to a representation vote but disputed the union's request for the disclosure of employee addresses.

The employer argued the Board lacked jurisdiction to order disclosure and raised confidentiality concerns.

The Board held it had jurisdiction under section 105(2)(f) of the Labour Relations Act to make the direction.

Balancing the union's need to communicate with the electorate against the employer's confidentiality interests and employee privacy, the Board directed a compromise: the employer must produce address labels, and the union may attend the employer's offices to jointly label and mail sealed envelopes containing campaign literature at the union's expense.

Following a finding that the employer violated the collective agreement by failing to employ union members, the parties agreed on the quantum of damages but disputed certain deductions and the method of payment.

The employer argued that the amount for an apprentice/oiler should be deducted as none was employed, and that damages should be paid directly to individuals with statutory deductions for income tax and unemployment insurance.

The Board rejected the deduction for the apprentice/oiler, finding the employer could not benefit from its failure to properly man the equipment.

The Board directed the employer to pay the full agreed damages of $126,879.82 to the union in trust on behalf of its members, leaving the statutory obligations to be resolved between the recipients and the government agencies.

Interest was ordered in accordance with the collective agreement and the Hallowell formula.

The applicant union filed a complaint alleging that the employer violated the statutory freeze provisions under section 13 of the Hospital Labour Disputes Arbitration Act by unilaterally altering the hours of work of certain registered nurses during collective bargaining.

The employer argued the changes were economically justified and consistent with past practice.

The Ontario Labour Relations Board found that the employer failed to establish that the changes were 'business as usual' or within the reasonable expectations of the employees.

The Board declared that the employer violated the statutory freeze and ordered compensatory damages for the affected employees, but declined to order the restoration of their previous schedules as the parties had since concluded a collective agreement.

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

The employer argued that the applicant was precluded from proceeding before the Board under section 50(2) of the OHSA because he had already elected to have his discharge dealt with through arbitration under a collective agreement.

The applicant argued that he could not have made such an election because he was unaware of the OHSA reprisal aspect of his discharge until after the grievance was filed.

The Board granted the employer's motion, finding that the applicant had elected to have the propriety of his discharge adjudicated through arbitration and could not change forums midstream.

The complaint was dismissed.

The applicant union filed an unfair labour practice complaint alleging that the employer and its director laid off several employees because of their union activity during an organizing campaign.

The Board found the director's testimony regarding the reasons for the layoffs to be contradictory and not credible.

The Board concluded that the layoffs were motivated by anti-union animus, violating sections 65, 67, and 71 of the Labour Relations Act.

The Board also found the director personally liable as he was the controlling mind of the company and acted on its behalf.

The respondents were ordered jointly and severally to pay $24,797.00 in damages for the lost wages of the laid-off employees.