R. Montague

The employer sought reconsideration of a Board decision ordering that ballots cast in a representation vote be counted rather than sealed.

The employer argued that under section 8.1 of the Labour Relations Act, 1995, the Board must seal the ballot box upon receiving a notice of disagreement regarding the union's estimate of employees in the bargaining unit.

The Board interpreted section 8.1 pragmatically, holding that a reflexive sealing is not required unless there is a material difference serving a labour relations purpose.

However, because the employer clarified that the individual status of each eligible voter was in dispute (independent versus dependent contractors), the Board exercised its discretion to order the ballot box sealed and the ballots segregated.

The Ontario Labour Relations Board heard a procedural motion to determine which party should call its evidence first in an application involving a conflict of interest objection under section 14(4).

The majority of the Board directed the employer to call its evidence first, reasoning that the employer possessed the specific knowledge regarding the alleged conflict of interest and that requiring the union to prove a negative across hundreds of sites would unnecessarily prolong the proceedings.

In an application for certification, the union and employer agreed on a bargaining unit description that excluded 'office and clerical staff'.

The sole remaining issue was whether receptionists fell within this exclusion.

The Board found that while receptionists shared some community of interest with bargaining unit employees, their duties were primarily administrative and clerical in nature, involving the collection of information that flowed to the accounting staff.

Consequently, the Board concluded that the receptionists fell within the office and clerical exclusion and were excluded from the bargaining unit.

A final certificate was issued.

The applicant trade union applied for certification, and a representation vote was held.

The responding employer sought to dismiss the application, alleging that a union representative accosted and spoke to employees outside the building where the polling station was located, thereby violating the Labour Relations Act, 1995.

The Board dismissed the employer's request, finding no prima facie case that the union representative intimidated, coerced, or unduly influenced voters.

The Board noted that electioneering outside the polling area is permissible absent improper conduct.

As more than fifty percent of the ballots were cast in favour of the applicant, a certificate was issued.

The applicant union filed applications for certification and unfair labour practice complaints against two temporary personnel agencies, Dare Personnel Inc. and Personnel Force Inc. The union sought bargaining rights for electricians supplied by the agencies to the federal Department of Public Works.

The Board determined as a preliminary issue whether the agencies were the employers of the electricians.

Applying the York Condominium factors, the Board found that fundamental control over the electricians' day-to-day work, including direction, supervision, and the authority to remove them from the site, rested with Public Works, not the agencies.

Consequently, the Board concluded that the personnel agencies were not the employers and dismissed the certification applications.

The complainant, a discharged employee and health and safety representative, filed complaints against his former employer under the Occupational Health and Safety Act (OHSA) and against his union under section 68 of the Labour Relations Act.

The employer raised preliminary objections that the OHSA complaint was barred by the doctrine of election, as the complainant's discharge had already been upheld at arbitration.

The Board agreed, finding the complainant had elected the arbitral route under section 24(2) of the OHSA, and dismissed the OHSA complaint.

Regarding the section 68 complaints, the union argued they lacked particulars and failed to disclose a prima facie case.

The Board found a prima facie case regarding the union's decision not to seek judicial review of the arbitration award, but restricted the evidence the complainant could adduce on other allegations due to a failure to provide requested particulars.

The applicant union sought certification for a bargaining unit of employees at the respondent's soil preparation business.

The parties disputed whether part-time employees should be excluded from the unit and whether the respondent's operation was excluded from the Labour Relations Act as an agricultural or horticultural enterprise under sections 2(b) or 2(c).

The Board found that the respondent had an established practice of hiring part-time employees during its peak season, warranting their exclusion from the bargaining unit.

Furthermore, the Board determined that the respondent's business of processing natural products into soil for the home garden market was a commercial enterprise, not agriculture or horticulture.

The Board directed that a certificate issue to the applicant.

The union and the employer reached a tentative collective agreement, which the bargaining unit members rejected in a ratification vote.

The members also refused to strike.

Relying on its constitution, the union accepted the agreement and notified the employer.

The employer refused to execute the agreement, citing the employees' rejection and concerns about the union's constitution.

The union filed an unfair labour practice complaint, and an employee subsequently filed a termination application.

The Board held that the employer breached its duty to bargain in good faith by refusing to execute the agreement, as it had no right to interfere in the union's internal ratification processes.

The Board directed the employer to execute the agreement and dismissed the termination application as untimely, reasoning that the agreement would have been in force prior to the application but for the employer's unlawful conduct.

The complainants, operators of a newsprint mill, filed a jurisdictional dispute complaint under section 91 of the Labour Relations Act regarding the assignment of repair and maintenance work on a new computer technology system (the Moore Mycro Stock Proportioning System).

The work was assigned to instrument mechanics represented by Local 89, which was challenged by maintenance electricians represented by Local 1149.

The Board applied established criteria for resolving jurisdictional disputes, including employer preference, employer practice, collective bargaining relationships, skill and training, and economy and efficiency.

Finding that the system was primarily for process control rather than motor control, and that instrument mechanics possessed the necessary specialized training and experience, the Board directed that the work continue to be assigned to Local 89.

The applicant union applied for certification of a bargaining unit of employees at the respondent's asphalt plant operations.

The parties disputed whether six seasonal employees engaged in preparatory work at the plant/shop should be included in the bargaining unit.

The majority of the Board found that these employees were covered by the existing Kingston area agreement for construction operations, as they were construction employees temporarily preparing equipment.

Consequently, they were excluded from the proposed bargaining unit.

A representation vote was ordered for the remaining eligible employees.

The applicant employees applied to terminate the bargaining rights of the respondent union.

The union challenged the list of employees filed by the employer, arguing that the three individuals on the list were not hired in accordance with the union security and hiring hall provisions of the collective agreement.

The Board found that the individuals were hired contrary to the collective agreement and, applying the April Waterproofing principle, concluded they were not properly included in the bargaining unit.

As a result, less than forty-five percent of the employees in the bargaining unit had voluntarily signified they no longer wished to be represented by the union, and the application was dismissed.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether an individual was an 'employee' or excluded due to managerial functions.

The respondent employer argued the Board should decline to inquire because the union had agreed to exclude the individual during the prior certification proceeding.

The Board held that omitting an individual from the employer's schedules does not constitute a binding agreement on their employee status.

Finding no clear agreement that the individual exercised managerial functions, the Board appointed a Board Officer to inquire into the individual's duties and responsibilities.

The complainant filed a jurisdictional dispute regarding the installation of site services at a plant building project.

The Board was asked to make a preliminary determination under section 150 of the Labour Relations Act as to whether the work fell within the industrial, commercial and institutional sector.

The complainant argued that the Board should consider area practice in making this determination.

The Board held that the concepts of area practice and geographic area have no basis in the statutory definition of 'sector' in section 117(e), which is determined by work characteristics.

The Board directed that the matter be listed for continuation of hearing to entertain evidence of work characteristics.

The applicant trade union sought certification for a unit of employees of the respondent, a company that prepares customers' materials for mailing via Canada Post.

The respondent argued that its labour relations fell under federal jurisdiction pursuant to s. 91(5) of the Constitution Act, 1867, as its operations were an integral part of the postal service.

The Board rejected this argument, finding that the respondent acted as a mail service broker and its operations were not an essential or integral part of Canada Post's core federal undertaking.

Having asserted provincial jurisdiction, the Board found the proposed bargaining unit appropriate and, based on the membership evidence, issued a certificate to the applicant.

The applicant filed an application to terminate the respondent union's bargaining rights.

The union had previously applied for a direction to settle a first collective agreement by arbitration, which was granted by another panel of the Board.

The Board held that under section 40a(22) of the Labour Relations Act, it must consider the applications in the order it deems appropriate, and if it grants one, it must dismiss the other.

The Board determined it was appropriate to consider the first contract application prior to the termination application.

Since the first contract application was granted, the termination application was dismissed.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether four individuals were employees.

The respondent employer argued the application should be dismissed without a hearing on the merits because the parties had previously agreed during a certification application that the individuals exercised managerial functions and were excluded from the bargaining unit.

The union contended the agreement was only for the purposes of the count.

The Board found that the prior decision recorded an agreement on employee status, which triggered the Westmount Hospital policy restricting subsequent applications.

The Board declined to go behind the prior decision and dismissed the application.

The applicant trade union applied for certification.

The parties partially agreed on the bargaining unit description but disputed the inclusion of certain positions.

The applicant filed membership evidence and a Form 9 declaration that disclosed minor discrepancies in the collection of membership fees and signatures.

The respondent employer sought to inspect the membership evidence or, alternatively, requested a hearing to cross-examine the union on the discrepancies.

The Board denied the employer's requests, affirming its long-standing practice and statutory mandate under section 111(1) of the Labour Relations Act to maintain the secrecy of union membership records.

The Board found the discrepancies noted in the Form 9 did not cast doubt on the reliability of the membership evidence.

As the union demonstrated support well in excess of the required 55 per cent, the Board issued an interim certificate pending the final resolution of the bargaining unit composition.

The applicant applied to terminate the respondent union's bargaining rights in the construction industry.

The respondent moved to dismiss the application on the basis that the applicant was not an employee in the bargaining unit on the application date.

The Board granted the motion, applying its consistent practice in the construction industry of counting only those employees actually present at work on the application date.

Since the applicant was not at work on that date, he lacked status under section 57(2) of the Labour Relations Act to bring the application.