M. J. Fenwick

The complainants, security guards at the University of Toronto, alleged that their union breached section 68 of the Labour Relations Act (duty of fair representation) during collective bargaining.

They claimed the union bargaining committee intentionally misled them about a new requirement for medical examinations and failed to secure a promised provision regarding lieu days.

The Board found that the union representatives acted in good faith and that any failure to mention the medical examination requirement during the ratification meeting was due to honest inadvertence, not intentional misrepresentation.

The Board concluded that the union's conduct, while perhaps unwise in some respects, was not arbitrary, discriminatory, or in bad faith.

The complaint was dismissed.

The complainant filed an unfair labour practice complaint against his former employer nearly three years after his discharge, alleging he was terminated for exercising rights under the Labour Relations Act.

He had previously pursued an unsuccessful arbitration and two unsuccessful complaints against his union.

The employer raised a preliminary objection based on extreme delay.

The Ontario Labour Relations Board exercised its discretion under section 89(4) of the Act to decline to inquire into the complaint, finding the delay extreme, the explanation insufficient, and no overriding public policy reasons to proceed.

The complainants alleged that the respondent terminated Margaret O'Connor's employment because she testified at an arbitration hearing, contrary to section 80 of the Labour Relations Act.

The respondent argued that an arbitration hearing is not a 'proceeding under this Act' and therefore section 80 did not apply.

The Ontario Labour Relations Board held that a board of arbitration or sole arbitrator is a statutory tribunal constituted under the Act, and thus a hearing before such a tribunal is a 'proceeding under this Act'.

Consequently, witnesses at arbitration hearings are protected against reprisals.

The complaint was adjourned sine die at the request of the parties.

The union applied for certification of the respondent's employees.

The respondent argued its air freight forwarding business fell under federal jurisdiction as an integral part of interprovincial and international air transport.

The Board held that the respondent's business was a purely local undertaking, as it merely contracted with air carriers on behalf of customers and did not provide interprovincial transportation itself.

The Board assumed jurisdiction.

In an addendum, the Board found an employee petition opposing certification was voluntary and ordered a representation vote.

The complainant, a union member, was fined $1,000 by his union for supporting a rival union's displacement campaign.

He filed an unfair labour practice complaint alleging violations of sections 3 and 70 of the Labour Relations Act.

At the hearing, the complainant's counsel explicitly withdrew any reliance on section 80(2)(b), which specifically prohibits unions from imposing penalties on persons for exercising rights under the Act.

The Board found that while the complainant had a right to participate in the rival union's campaign, the mere imposition of a disciplinary fine did not constitute 'intimidation or coercion' within the meaning of section 70.

Because the complainant had abandoned the section 80(2)(b) claim, and the Board refused a post-hearing request to reopen the case to argue it, the complaint was dismissed.

The complainant union alleged that the respondent employer violated the duty to bargain in good faith under the Labour Relations Act by unlawfully withdrawing an offer to continue COLA payments in order to avoid reaching a collective agreement.

The employer argued that its inexperienced negotiator made a mistake in conveying the company's position during conciliation, and that it promptly corrected the error once discovered.

The Ontario Labour Relations Board dismissed the complaint, finding that the employer had made a genuine mistake and did not intend to continue the COLA payments, and that correcting the unaccepted offer did not constitute bad faith bargaining.

The applicant union applied under section 124 of the Labour Relations Act alleging the respondents failed to comply with a collective agreement.

The union served subpoenas on two witnesses, who failed to appear at two scheduled hearings.

The union requested a bench warrant to ensure their attendance.

The Board, acting under section 103(2)(a) of the Act, found it had the authority to enforce the attendance of witnesses in the same manner as a court of record in civil cases.

Satisfied that the witnesses were properly served and their evidence was material, the Board issued a warrant for their arrest to bring them before the Board.

The applicants, employees of Northland Glass and Metal Limited, applied to terminate the bargaining rights of the respondent union.

The union argued that the application was instigated by the employer because the lead applicant had asked the employer for the name of a lawyer to assist with the decertification.

The Board found that this single inquiry, standing alone, was insufficient to indicate management influence, especially since the employees had previously considered decertification.

The Board concluded the statement of desire was voluntary and directed a representation vote.

One Board member dissented, finding the employer involvement sufficient to dismiss the application.

The applicant union filed a complaint regarding a work assignment dispute over the installation of boiler systems at a generating station.

The respondent employer and union argued that the Board lacked jurisdiction under section 91(14) of the Labour Relations Act because the parties' collective agreements required such disputes to be referred to the Impartial Jurisdictional Disputes Board (IJDB).

The applicant contended the IJDB was no longer functioning.

The Board found that the IJDB procedures were still operative and that the parties were bound by them.

Consequently, the Board concluded it lacked jurisdiction to inquire into the complaint and terminated the proceedings.

The United Brotherhood of Carpenters and Joiners of America, Local 1190 applied for certification shortly before the terminal date of a competing application by the Labourers' International Union of North America, Local 183.

Due to an administrative error, the Board failed to process Local 1190's application and certified Local 183.

Eight months later, Local 1190 requested reconsideration and revocation of Local 183's certificate.

The Board dismissed the request, finding that Local 1190 failed to act with due diligence in pursuing its application, while Local 183 had actively relied on its certificate to seek a collective agreement.

Balancing the interests, the Board concluded that revoking the certificate would cause greater prejudice to Local 183.

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

The respondent employer requested that the Board impose a bar on future applications pursuant to section 103 of the Labour Relations Act, arguing that the employees had been subjected to an atmosphere of certification and relying on a Board Officer's alleged statement that a bar would apply.

The Board dismissed the application for certification but declined to impose a bar, finding no exceptional circumstances to justify departing from its usual practice of not imposing a bar after a second unsuccessful application that did not proceed to a hearing.

The union applied for certification of employees in the respondent's diagnostic services division.

A dispute arose over whether two employees who performed blood tests and electrocardiograms at a nursing home were 'hospital employees' under the Hospital Labour Disputes Arbitration Act.

The Board held that because the employer was not a hospital and the functions performed were not statutorily required of a nursing home, the employees were not 'hospital employees' within the meaning of the Act.

The complainant refused to perform assigned work due to an honest belief that it endangered her health, exercising her rights under the Occupational Health and Safety Act.

However, she failed to remain at the workplace and call for an inspector as required.

In this dissenting opinion, the Board Member argued that because the complainant did not follow the proper procedure of standing by for an inspection, the compensation ordered against the respondent should have been shared or reduced.

The Member also criticized the Occupational Health Branch for declining to conduct an immediate inspection after the complainant's employment was terminated.

Following a finding of liability for breaching the hiring hall provisions of a collective agreement, the respondent employer challenged the quantum of damages.

The employer argued that the union was required to identify the specific members who lost work and prove that they had attempted to mitigate their damages.

The Ontario Labour Relations Board rejected this argument, holding that the union's out-of-work list established a prima facie case for damages.

The Board found that the burden shifted to the employer to lead evidence of a failure to mitigate, which it had not done.

The Board ordered the employer to pay $6,885.50 in damages to the union on behalf of its unemployed members.

The complainant, a jeweller, refused to perform electro-plating work using a cyanide solution in an improvised setup in a washroom, fearing exposure to toxic hydrogen cyanide gas.

After experiencing symptoms and seeking medical attention, she refused to continue the work the next day.

The employer gave her an ultimatum to do the work or leave, which the Board found constituted a constructive discharge.

The Board held that the complainant had reasonable grounds to believe the work was unsafe and that her discharge for exercising her right to refuse unsafe work violated section 24 of the Occupational Health and Safety Act.

The employer was ordered to pay compensation for lost wages and benefits.

The applicant union sought certification for a bargaining unit of store managers at the respondent's retail outlets.

The respondent opposed the application, arguing that the store managers exercised managerial functions and were employed in a confidential capacity in matters relating to labour relations under section 1(3)(b) of the Labour Relations Act.

The Board found that the store managers had the authority to hire and phase out temporary employees, schedule hours of work, and evaluate employees.

The Board concluded that the store managers exercised managerial functions and dismissed the application for certification.

The union applied under section 106(2) of the Labour Relations Act for the appointment of a Board officer to inquire into the employee status of three foremen.

During prior collective bargaining, the union had agreed to a recognition clause excluding foremen, despite initially reserving its right to challenge their status.

The Ontario Labour Relations Board dismissed the application, applying its policy that where parties have settled the employment status of a person by agreement, neither party can unilaterally repudiate that agreement by bringing a section 106(2) application absent a material change in duties.

The union applied for certification and filed an unfair labour practice complaint, alleging the employer interfered with a representation vote by paying a 10.5% retroactive wage increase to employees one week before the vote.

The union sought certification without a vote under section 8 of the Labour Relations Act.

The Board dismissed the complaint, finding that the employer had decided on and communicated the wage increase before receiving notice of the certification application.

Consequently, the employer was required by the statutory freeze provisions in section 79(2) to implement the increase as planned, and doing so did not constitute a violation of section 64.

The applicant union alleged that the respondent was a successor employer under section 63 of the Labour Relations Act after the original employer, Hoco Limited, contracted out the management of its hotel restaurants to the respondent.

The respondent was responsible for hiring and supervising staff and received a percentage of sales or profits, but Hoco retained ownership, control of revenues, and decision-making power over prices and hours.

The Board found that the arrangement was a contracting out of services rather than a transfer of a functional economic vehicle or part of a business.

The application was dismissed.

The applicant union applied for certification.

The respondent employer raised two preliminary issues: it sought to adduce evidence of alleged intimidation by union supporters to justify a representation vote, and it requested that the Board's notice to employees be reposted in Italian.

The Board declined to entertain the intimidation charges because the employer failed to provide timely particulars despite having knowledge of the allegations weeks before the hearing.

The Board also denied the request to repost the notice in Italian, finding that the employer lacked standing to raise procedural objections on behalf of the employees.

Finding that more than fifty-five percent of the employees were union members, the Board granted certification.