Nimal V. Dissanayake

During a hearing for certification and an unfair labour practice complaint, a dispute arose over a question posed during cross-examination.

Union counsel asked a witness, the employer's housekeeping supervisor, whether she went on vacation with the owner of the nursing home.

Employer counsel objected on the grounds of witness privacy.

The Board ruled that the question was permissible to test the credibility of the witness's evidence, as both the owner and the supervisor had testified they went their separate ways and did not discuss the dismissed employee.

However, the Board limited the cross-examination, ruling that union counsel must accept the witness's answer and could not pursue the issue further.

The Board also denied the employer's request for an adjournment to seek judicial review, directing counsel to move to another area of cross-examination for the remainder of the day.

The applicant union applied for certification.

Two employees filed a petition objecting to the certification and requested an extension of the terminal date, arguing that the Notice to Employees had not been posted for an adequate period.

The Board found that the notice had been posted for 2.5 days prior to the terminal date, which was sufficient time for the objecting employees to file their petition.

As no employees were shown to be prejudiced by the posting period, the Board declined to extend the terminal date and granted the certificate.

The complainant applied for reconsideration of a Board decision that dismissed his unfair labour practice complaint for lack of prosecution after he failed to attend the scheduled hearing.

The complainant argued that he missed the hearing because he mistakenly believed it was scheduled for the following Tuesday.

The Board dismissed the application for reconsideration, finding that the complainant had received clear notice of the hearing date and that his failure to attend was due to his own negligence in not reading the notice, which is not a sufficient ground to reopen the matter.

The applicant filed an application for termination of bargaining rights.

The respondent union moved to dismiss the application as untimely because it was filed after a conciliation officer had been appointed.

The intervener employer argued the appointment of the conciliation officer was a nullity due to defective service.

The Board held that administrative defects in service do not invalidate the appointment of a conciliation officer and that the employer had waived any irregularity by participating in conciliation.

The application was dismissed as untimely.

The union referred a grievance to arbitration under section 124 of the Labour Relations Act concerning the interpretation of a meal allowance provision in the provincial collective agreement.

The provision stated that employees required to stay overnight shall receive a meal allowance of $30.00 per day for each day they are away.

The employer argued the allowance should only cover meals the employee could not have in the normal manner, excluding breakfast on the first day and dinner on the last day.

The Board agreed with the union's interpretation, finding that the provision established a flat per diem rate payable for each work day the employee is away, regardless of their normal eating pattern.

The applicant union applied for certification and filed an unfair labour practice complaint against the respondent employer.

The employer alleged that the union's membership evidence was unreliable because an employee had threatened another employee with job loss and higher initiation fees if he did not join the union.

The Board found that the employee who made the statements was not acting as a collector or agent for the union, but was merely a rank-and-file employee trying to influence a friend.

As peer pressure does not invalidate membership evidence, the Board found the evidence reliable and granted the certificate.

The union subsequently withdrew its unfair labour practice complaint.

The complainant, a dismissed university professor, alleged that his union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to seek judicial review of an arbitration award that upheld his discharge.

The union had consulted with legal counsel and concluded there were no legal grounds for judicial review.

The Ontario Labour Relations Board dismissed the complaint, finding that the union's decision was reasonable, not arbitrary, discriminatory, or in bad faith, and that a union is not obligated to pursue judicial review of an arbitration award when it reasonably believes the application would fail.

The complainant alleged that the respondent union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to seek judicial review of an arbitration award that dismissed his discharge grievance.

The Board found that the union's decision was based on a reasonable assessment, following legal advice, that there were no legal grounds to successfully challenge the award.

The complaint was dismissed.

The union filed unfair labour practice complaints and a related employer application under section 1(4) of the Labour Relations Act after Metropolitan Life Insurance Company contracted out its cleaning services to Allen Maintenance Ltd. The union alleged that the contracting out was motivated by anti-union animus, that Metropolitan failed to disclose the decision during collective bargaining, and that Metropolitan and Allen were related employers or that Metropolitan remained the true employer.

The Board dismissed the applications, finding that the contracting out was a bona fide business decision, that no de facto decision had been made during bargaining that would trigger a duty to disclose, and that Allen was an independent contractor exercising fundamental control over its employees without common control or direction from Metropolitan.

Three employees objected to a representation vote regarding the termination of the respondent union's bargaining rights, claiming they missed the vote because they relied on a letter from the employer that listed an alternate date, rather than the Board's official notice.

The Board dismissed the objection, finding that the employer had properly posted the Board's official notices which clearly stated the date and time of the vote.

The Board held that employees who ignore official Board notices in favour of employer communications do so at their own peril and are the authors of their own misfortune.

The complainants, members of the respondent union, alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The union had settled several proceedings against an employer, recovering $21,069.06, which it allocated to its general fund rather than to the complainants' benefit accounts.

The Board found that the union did not act arbitrarily, discriminatorily, or in bad faith, as the complainants had previously signed individual contracts waiving their benefits and had shown no interest in pursuing them until after the settlement was reached.

The complaint was dismissed.

The applicant union applied for certification.

The parties agreed on the bargaining unit description and waived their right to a formal hearing, but disputed the employee status of six individuals.

The Board found that the union had sufficient membership support regardless of the status of the disputed individuals and issued a final certificate.

The Board declined the parties' request to appoint a Labour Relations Officer under section 106(2) of the Labour Relations Act to determine the status of the six individuals, finding the request premature as bargaining had not yet commenced.

The applicant trade union applied for certification to represent employees of the respondent.

The respondent and the incumbent union (Intervener #1) argued the application was untimely under section 61(2) of the Labour Relations Act because a conciliation officer had been appointed.

The applicant argued the incumbent union had abandoned its bargaining rights through inaction, rendering the conciliation appointment a nullity.

The Board held that in the face of the clear wording of section 61(2), it would not go behind the conciliation appointment based on alleged de facto abandonment.

The application was dismissed as untimely.