N. Wilson

In an application for certification in the construction industry, the Ontario Labour Relations Board determined whether certain individuals should be counted as employees in the proposed bargaining unit of electricians.

The Board found that an employee attending a training program on the application date was not 'at work' in the unit.

The Board also held that three employees performing electrical work on the employer's own premises, who were not qualified journeymen or apprentice electricians under the Trades Qualification Act, should not be included in the unit because they shared no real community of interest with qualified electricians who could lawfully work on construction sites for clients.

The respondent employer and a group of employees requested reconsideration of the Board's decision to certify the applicant union in the construction industry.

They argued that the bargaining unit should have been described to conform with the provincial collective agreement, which included welders, rather than the designation orders, and that the failure to do so deprived them of proper notice.

The Board dismissed the requests, finding that the bargaining unit must be described by reference to the designation orders and that the notices provided were sufficient and proper.

The respondent employer applied for reconsideration of the Board's decision to certify the applicant union, alleging that employees did not receive proper notice of the application because the employer failed to post the required notices.

The Board noted that the applicant union also failed to properly complete and file an Advice of Posting Card.

Given the lack of evidence that employees received proper notice, the Board declined to dismiss the reconsideration application without a hearing and directed that the matter be listed for a hearing to receive evidence on the notice issue.

The applicant trade union applied for certification as the bargaining agent for plumbers and steamfitters employed by the respondent in the construction industry.

The applicant requested a clarity note to include welders working in these trades in the bargaining unit.

The Board held that because plumbing and steamfitting are compulsory certified trades under the Apprenticeship and Tradesmen's Qualification Act, only qualified journeymen or apprentices can lawfully work in those trades and be included in the bargaining unit.

The request for a clarity note regarding welders was denied, but the Board granted the application for certification for the qualified tradespersons.

The Electrical Contractors' Association of Ottawa applied for accreditation as the bargaining agent for employers in the residential sector of the construction industry for whom the International Brotherhood of Electrical Workers, Local Union 586 holds bargaining rights in the Regional Municipality of Ottawa-Carleton, the United Counties of Prescott and Russell, and the County of Lanark.

The Ontario Labour Relations Board found the applicant to be a properly constituted employers' organization and the respondent to be a trade union.

The Board determined the appropriate unit of employers and found that the applicant represented a majority of the employers in the unit, who in turn employed a majority of the employees.

The Board granted the application and issued a certificate of accreditation.

The Board considered consolidated applications regarding representation rights for carpenters employed by a framing subcontractor.

Local 183 sought a single employer declaration and to revoke Local 27's certification, arguing it had a pre-existing collective agreement.

Local 27 argued Local 183's agreement was void for employer support and because it was signed when the employer had only one employee.

The Board held that a voluntary recognition agreement can be valid with a single employee.

It also found no employer support, as the employer signed the agreement to comply with a valid subcontracting clause of the general contractor.

The Board granted the single employer declaration, found Local 183's agreement valid, and revoked Local 27's certification.

The union filed an unfair labour practice complaint and an application for first contract arbitration after the employer, a boarding school, proposed a "notional recall" of striking teachers as a condition of settlement.

The proposal would have paid a select group of teachers but kept replacement workers in the classrooms until the end of the school year, excluding key union organizers.

The Ontario Labour Relations Board found that the employer's proposal was deliberately obstructive, lacked reasonable justification, and was motivated by a desire to avoid concluding a collective agreement and returning union supporters to work.

The Board held that the employer violated sections 15, 66, and 70 of the Labour Relations Act, directed the settlement of a first collective agreement by arbitration, and ordered the immediate reinstatement of the excluded union organizers.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether to issue new designation orders or amend existing ones under the provincial bargaining sections of the Labour Relations Act.

The referral arose after a previous Board decision found that Local 2693 was an affiliated bargaining agent and thus prohibited from entering into non-provincial agreements for construction labourers in the ICI sector.

The Board reviewed the history of Local 2693, the statutory framework for provincial bargaining, and several options available to the Minister.

A majority of the panel recommended that the Minister not alter the existing status quo to promote stability in provincial bargaining, while the Vice-Chair dissented, favouring the preservation of Local 2693's historical bargaining rights.

The applicant union applied for certification of a bargaining unit of operating engineers employed by the respondent in the construction industry.

The sole issue was whether any employees were performing bargaining unit work on the application date.

Applying the criteria from Seegmiller and Gilvesey, the Board rejected the use of a 'representative period' and focused on the work performed on the application date.

The Board found that two employees who operated worker and material hoists spent a majority of their time performing bargaining unit work on that date, even when participating in loading and unloading.

The Board directed the issuance of certificates for the ICI sector and the relevant geographic area.

The applicant union sought reconsideration and a stay of a previous Board decision that found it was an affiliated bargaining agent not entitled to represent construction labourers in the ICI sector.

The applicant argued the decision disrupted historic bargaining patterns and requested a stay pending a potential ministerial amendment to the designation orders.

The Board dismissed the request, finding no exceptional circumstances to justify a stay and noting that the power of reconsideration does not require the original panel, but the applicant failed to establish a strong prima facie case that the original decision was wrong.

The applicant union sought reconsideration of a Board decision that found the employer violated subcontracting provisions but awarded no damages because the union failed to prove any loss.

The union argued the Board ignored evidence of available subcontractors and erred in law by requiring proof of loss.

The Board dismissed the application, noting the union's evidence of loss was based entirely on hearsay and that the Board's jurisdiction under section 124 of the Labour Relations Act is compensatory, not punitive.

The Board considered a referral of a grievance to arbitration and a complaint over an assignment of work regarding concrete forming work at the Kipling Acres Home for the Aged.

The parties disputed whether the work was in the industrial, commercial and institutional sector.

The Board decided to defer further consideration of the matters until February 16, 1987, to allow an Industrial Inquiry Commissioner to attempt to mediate a resolution to the broader dispute between the Metropolitan Toronto Apartment Builders' Association and various unions over concrete forming work.

The corporate respondents sought production of certain documents and reconsideration of a previous Board decision regarding the validity of a certificate of accreditation.

The Board ordered the production of documents relating to the attempt by a group of residential low-rise contractors to join the Mechanical Contractors Association Toronto, finding them arguably relevant.

However, the Board dismissed the request for reconsideration, affirming that under section 106(1) of the Labour Relations Act, a certificate of accreditation is final and conclusive for all purposes and its validity cannot be challenged in a collateral proceeding before the Board.

The applicant employee sought to terminate the bargaining rights of the respondent union.

The union argued the application was untimely and should be postponed pending the resolution of outstanding unfair labour practice complaints against the employer.

The Board found the application timely and declined to postpone the hearing.

However, on the merits, the Board dismissed the application, finding that the applicant failed to establish that the statement of desire (petition) was voluntary, particularly given the history of employer unfair labour practices and the applicant's failure to call the key employee who originated the petition to testify.

In consolidated complaints and an application for consent to prosecute, the corporate respondents raised a preliminary issue challenging the validity of a 1973 accreditation decision and certificate, arguing it was a nullity due to jurisdictional errors.

The Board declined to permit the challenge, holding that a certificate of accreditation conclusively establishes bargaining rights until revoked or quashed, and that one panel of the Board should not act as an appellate body over another.

In a separate evidentiary ruling, the Board held that evidence of conversations with a mediator in the presence of both parties is admissible, but evidence of what a mediator said to one party in private is inadmissible to protect the confidentiality of the mediation process.

The union filed a grievance alleging the employer violated the collective agreement's union security clause by subcontracting excavation work to a non-union equipment rental operator.

The Board found that the arrangement constituted subcontracting and that the employer violated the agreement.

However, the Board declined to award damages because the union failed to adduce evidence that it had unemployed members available to perform the work at the material time.

The Board issued a declaration and a cease and desist order.

The applicant union sought certification for a bargaining unit consisting solely of employees at the respondent's Dupont Street location.

The respondent employer argued that the appropriate unit should encompass all office and clerical employees in Metropolitan Toronto, which would include both its Dupont and Yonge Street locations.

Applying the Usarco criteria for community of interest, the Board found significant functional coherence and interdependence between the two locations, centralized managerial authority at Yonge Street, and an ongoing computerization project that would further integrate operations and transfer work.

The Board concluded that a separate unit for the Dupont location would result in undue fragmentation and determined that the larger, municipal-wide unit was appropriate.

The applicant union sought certification for a bargaining unit of truck drivers employed by the respondent in the construction industry.

The parties disputed the inclusion of two employees who performed both truck driving and labouring work.

The Board found that both employees were paid exclusively at the labourer's rate and were treated by the respondent as falling within a separate labourers' bargaining unit.

Consequently, the Board excluded them from the truck drivers' unit.

Having determined the final list of employees, the Board found that more than 55% of the employees in the unit were members of the applicant and ordered that a certificate issue.

The applicant union filed a new application for certification after withdrawing a previous application due to an irregularity in membership evidence.

The respondent employer argued that the new application was untimely and that the previous irregularity tainted the fresh membership evidence, requesting a representation vote.

The Board found no intention to mislead in the prior application and noted that fresh, untainted membership evidence was filed.

The Board declined to direct a representation vote and granted the certificate.

The applicant union referred a grievance to the Ontario Labour Relations Board alleging that the respondent employer violated the provincial collective agreement by failing to hire union members and by subcontracting work to a non-union firm.

The employer argued that the collective agreement had expired and that the union's notice to bargain was defective.

The Board found that the parties were bound by the provincial agreement, that the notice to bargain was valid given the parties' subsequent bargaining conduct, and that the employer had violated the hiring and subcontracting provisions.

The Board directed the parties to agree on the amount of damages owing to the union.