Louisa M. Davie

The Minister of Labour referred questions to the Ontario Labour Relations Board regarding a request by the Painters' union to amend its employee bargaining agency designation to explicitly include 'employees engaged in the removal of asbestos'.

The Labourers and Insulators unions opposed the amendment, arguing it would disrupt the province-wide bargaining scheme and create overlapping classifications, as they also represent asbestos removers.

The Board advised the Minister that the amendment was neither necessary nor appropriate.

The Board found that the Painters already assert jurisdiction over asbestos removal through their 'fireproofing applicators' designation, and adding specific work functions to craft-based designations would undermine the stability of the province-wide bargaining regime.

The applicant union filed applications for certification for newspaper delivery drivers engaged by the responding party.

The central issue was whether the drivers were dependent contractors (and thus employees under the Labour Relations Act) or independent contractors.

The Board applied the eleven-factor test from Algonquin Tavern, considering the context of the newspaper industry.

The Board found that the drivers had significant independence, including the ability to use substitutes, control their own expenses, and work other jobs.

The Board concluded that the drivers were independent contractors and dismissed the applications for certification.

The applicant trade union applied for certification and the parties agreed on a bargaining unit description during the Board's waiver process.

The union subsequently requested to amend the bargaining unit to include part-time employees, arguing that the Labour Relations Act required a combined unit.

The Board dismissed the request, finding that the statutory language was permissive, not mandatory, and that the union had provided no compelling reasons to resile from the agreed-upon description.

Following the certification of the applicant union, the respondent employer requested an investigation into allegations that five employees did not sign the union membership cards submitted on their behalf.

The Board conducted a confidential investigation and informed the employer that there was no basis to proceed further.

The employer subsequently requested reasons for this decision.

The Board provided written reasons explaining its rigorous, confidential procedures for verifying membership evidence and investigating non-sign allegations, emphasizing that section 113(1) of the Labour Relations Act prohibits the disclosure of employee wishes regarding union representation unless a prima facie case of fraud is established.

Two unions referred grievances to the Ontario Labour Relations Board regarding work performed by the employer on a barge.

The employer argued the work was ship repair/refitting and not covered by the construction industry collective agreements.

The Board dismissed the Millwrights' grievance, finding the work on a chattel (the barge) was not 'construction' under their provincial agreement, nor did it qualify as 'maintenance' under their maintenance agreement.

However, the Board allowed the Operating Engineers' grievance, finding their province-wide agreement was not restricted to the construction industry and applied to the crane operation work which constituted steel erection or mechanical installation.

The applicant trade union applied for certification to represent a bargaining unit consisting solely of registered and graduate nursing assistants (RNAs) at the respondent hospital.

The hospital opposed the proposed unit, arguing it would cause undue fragmentation and that a broader unit including service or paramedical employees was appropriate.

The Board applied the test from Hospital for Sick Children and found that an RNA-only unit was not appropriate in these circumstances, as it would lead to undue fragmentation and potential labour relations problems, particularly given the overlap in functions and the hospital's existing employee relations structure.

The application was dismissed.

The Ironworkers filed a jurisdictional dispute complaint against Ontario Hydro and the United Association regarding the assignment of work related to the removal and replacement of feedwater heaters at the Lakeview Thermal Generating Station.

The Board dismissed preliminary motions by the United Association to defer to The Plan for the Settlement of Jurisdictional Disputes, and by the Ironworkers to enforce the 1958 Cooper-Connolly trade agreement, finding the latter had been validly repudiated in 1981.

On the merits, the Board relied primarily on employer and area past practice.

It directed that the fabrication and installation of the structural steel floor falsework deck and track runway be assigned to the Ironworkers.

The Board divided the signalling and rigging work between the two trades, assigning the handling of piping equipment using power equipment to the Ironworkers, and the lateral movement and final installation using tools of the trade to the United Association.

The union applied for certification to represent stagehands and sought a declaration that the three corporate respondents constituted a single employer under section 1(4) of the Labour Relations Act.

The Board granted the single employer declaration, finding the respondents were engaged in associated or related businesses under common control.

However, applying the seven-factor true employer test, the Board found that the respondents were not the employer of the stagehands working on the application date, as direction, control, and the ultimate burden of remuneration rested with the third-party producer of the theatrical production.

Consequently, the certification application was dismissed.

The complainant, a volunteer deputy fire chief, alleged he was removed from his position for seeking enforcement of the Occupational Health and Safety Act.

The Board found that while the complainant was dedicated and knowledgeable, he was also narrow-minded and confrontational.

The Township council dismissed him because they viewed him as a troublemaker who undermined the relationship between council and the fire department, not because of any anti-safety animus.

The reprisal complaint under section 24 of the Act was dismissed.

The applicant union referred a grievance to the Board under section 126 of the Labour Relations Act.

The respondent employer argued that the grievance should be dismissed due to delay, laches, and the abandonment of bargaining rights prior to the introduction of province-wide bargaining.

The Board found that while Local 493 had delayed in asserting its rights, Local 607 had not abandoned its bargaining rights, meaning the employer was bound to the province-wide ICI collective agreement.

However, due to Local 493's inordinate delay and failure to enforce its rights, which lulled the employer into believing it was not bound, the Board held that the union was estopped from asserting its rights in this specific grievance.

The grievance was dismissed.

The applicant unions requested reconsideration of a Board decision dismissing their applications for certification in the construction industry.

The Board had ruled that membership evidence in one local could not be used to support an application by another local, and questioned the sufficiency of certain membership documents.

The Board held that the submitted membership documents, which consisted of a 1967 application and a recent certificate not signed by the employee, did not meet the Board's requirements for proof of membership.

Furthermore, the Board confirmed its long-standing practice that evidence of membership in one local cannot support an application brought by another local, even under the province-wide bargaining scheme in the ICI sector.

The request for reconsideration was dismissed.

The applicant union sought certification for a construction industry bargaining unit of labourers employed by the respondent property management company.

The respondent argued it was engaged in maintenance, not construction (repair) work, and thus the construction industry provisions did not apply.

The Board applied the Master Insulators test to distinguish maintenance from repair work.

It found that while work at one parking garage was preventative maintenance, the extensive concrete demolition and resurfacing at a second garage constituted repair and therefore construction work.

As the respondent employed persons to perform construction work on the application date, the Board granted the application and issued a certificate.

The applicant union sought a declaration that there was a sale of a business from Gallant Painting to Lindsay Maintenance under section 63 of the Labour Relations Act.

Gallant Painting ceased operations after being organized by the union.

Shortly after, Lindsay Maintenance, a mechanical maintenance contractor, hired the former owner of Gallant Painting to manage a newly created painting division.

The Board found that the essential elements of the maintenance painting business resided in the expertise and reputation of the former owner.

By hiring him, Lindsay Maintenance acquired the predecessor's key asset, enabling it to be placed on a major customer's bidder's list and obtain work.

The Board concluded this constituted a sale of a business and declared the union the bargaining agent for the painting division employees.

The applicant union sought certification for a bargaining unit of carpenters engaged in the installation of exterior cladding systems.

The respondent employer argued for a broader unit of all carpenters and carpenters' apprentices.

The Board ruled that in the construction industry, a craft union must seek to represent all members of its craft employed by the respondent, and therefore rejected the applicant's restricted description.

The Board defined the appropriate bargaining unit and appointed an officer to inquire into the employment status of certain individuals characterized by the respondent as independent contractors.

The applicant trade union applied for certification as the bargaining agent for journeymen and apprentice sheet metal workers employed by the respondent in the construction industry.

The Ontario Labour Relations Board found that the applicant had the requisite membership support of more than fifty-five per cent of the employees in the bargaining unit.

The Board issued certificates to the applicant for the industrial, commercial and institutional sector in the Province of Ontario, and for all other sectors in the specified geographic areas.

The applicant employee filed an application to terminate the union's bargaining rights in the ICI sector.

The union argued the application should be dismissed because the applicant and two other employees were hired in violation of the collective agreement's hiring hall provisions and thus were not 'employees in the bargaining unit' under section 57(2) of the Labour Relations Act, relying on the April Waterproofing principle.

The Board found that while the employer technically violated the collective agreement by recalling the long-service employees without contacting the union hall, this did not exhibit the 'mischief' the April Waterproofing principle was designed to prevent.

The employer did not artificially pad the list or hire persons to foster a termination application.

The Board directed a representation vote.

The applicant union applied for certification to represent a bargaining unit of registered and graduate nurses, seeking to carve them out from an existing all-employee bargaining unit represented by the incumbent union.

The Board declined to exercise its discretion under section 6(3) of the Labour Relations Act to permit the carve-out, finding no evidence that the incumbent union had failed to adequately represent the nurses and noting that the nurses had received a 48% pay increase over the period of representation.

The application was dismissed.

Two local unions applied for certification in the construction industry.

The applicants filed combination applications for membership and receipts, but the evidence of membership in one local union could not be applied to the other.

As a result, neither applicant had numerically sufficient membership evidence to be certified or to justify a representation vote.

The Board dismissed the applications without a hearing.

In a jurisdictional dispute complaint between the Boilermakers and the Labourers regarding demolition work, the Labourers sought to adduce viva voce evidence on a preliminary basis to challenge the Board's earlier ruling on the parameters of admissible past practice evidence.

The Board dismissed the request, holding that it has inherent jurisdiction to determine the relevance of evidence without first hearing it, and that evidence regarding the demolition of structures other than field-erected, steam-generating boilers in an operating environment is irrelevant to the specific work in dispute.

The employer and the Sheet Metal Workers' union reached a settlement regarding a grievance and sought leave to withdraw the grievance and the related jurisdictional dispute complaint.

The Plumbers' union (Local 46), which was not a party to the settlement, objected to the withdrawal of the jurisdictional dispute complaint and argued it should proceed to adjudication.

The Board held that since the underlying grievance had been resolved, there was no continuing conflict necessitating the adjudication of the work assignment.

The Board declined to exercise its discretion to inquire further into the complaint merely to issue a declaratory order regarding trade jurisdiction.

Leave to withdraw both the complaint and the grievance was granted.