Robert D. Howe

The respondents in several certification applications brought a motion to postpone the Board's hearing of a Charter challenge to section 12 of the Labour Relations Act.

The respondents argued the hearing should be adjourned pending the Ontario Court of Appeal's decision in Cuddy Chicks, which would determine the Board's jurisdiction to hear Charter issues.

The Board denied the requested postponement, emphasizing the importance of expedition in labour relations matters and noting that the current state of the law recognized the Board as a court of competent jurisdiction capable of applying the Charter.

The Ontario Public Service Employees Union brought six applications under the Successor Rights (Crown Transfers) Act, alleging that the Crown transferred undertakings to various contractors who provided services such as snow plowing, garbage disposal, janitorial work, and park maintenance.

The Crown and the contractors argued that the applications should be dismissed because the Union had abandoned its bargaining rights and because some contractors had no employees and were therefore not 'employers' under the Act.

The Ontario Labour Relations Board held that the contracted services constituted 'undertakings' that were transferred from the Crown.

The Board also found that a contractor need not have employees to be an 'employer' under the Act.

Finally, the Board held that even if the Union had abandoned its rights regarding earlier contracts, the undertakings reverted to the Crown upon the expiry of those contracts, creating a fresh transfer and a new opportunity for the Union to assert its rights.

The applications were granted, and the contractors were declared bound by the collective agreement.

The union filed an unfair labour practice complaint alleging that the grievor, a truck driver who hauled raw forest products for the respondent, was terminated contrary to the Labour Relations Act.

As a preliminary issue, the Board had to determine whether the grievor was a 'dependent contractor' and thus an employee under the Act, or an independent contractor.

After a 24-day hearing, the majority of the Board applied the eleven-factor test from Algonquin Tavern and concluded that the grievor was an independent contractor.

The grievor owned his own truck, could hire substitute drivers, was free to reject loads, and was not subject to the same control and discipline as the respondent's employee drivers.

Consequently, the Board lacked jurisdiction and dismissed the complaint.

A concurring member agreed with the result regarding the grievor but disagreed with the majority's broad findings about the respondent's other contractors.

The applicant union applied for certification.

The respondent employer requested an inquiry into the validity of the membership evidence or a representation vote, arguing that several employees whose names appeared on the employer's list had Panjabi as their native language and did not know English.

The Board rejected this argument, noting that there were no allegations of wrongdoing by the union and no evidence that any individual did not understand what they were signing.

The Board issued a certificate to the applicant.

In an application for certification, a representation vote was held.

The respondent employer and objecting employees sought a second vote, arguing that an employee who cast a ballot and resigned the following working day to take another job lacked sufficient interest in the bargaining unit.

The Board held that the employee was eligible to vote because she was employed on both the date the vote was ordered and the date it was taken.

The Board also declined a belated request by the objectors to redefine the bargaining unit to exclude engineering employees, noting the parties had previously agreed to their inclusion.

The union won the vote and a certificate was issued.

The applicant union brought an application under section 63 of the Labour Relations Act, alleging that a sale of a business occurred from Dant Industries Limited to One-Vinyl Window Mfrs.

Ltd. through a receiver, Dunwoody Limited.

Dant, a vinyl window manufacturer, went into receivership and its assets were purchased by One-Vinyl, which continued to operate from the same premises, using much of the same equipment and many former Dant employees, to produce a redesigned vinyl window.

The Board found that the transaction constituted a sale of a business within the meaning of section 63, as One-Vinyl acquired a functional economic vehicle rather than merely incidental assets, and there was no substantial change in the character of the business.

The applicant union applied for certification.

The parties agreed on the bargaining unit description except for the inclusion of professional engineers.

The Board found the applicant to be a trade union and determined that it had sufficient membership support to warrant a representation vote.

The Board directed a representation vote for the general bargaining unit, with ballots from professional engineers and two challenged employees to be segregated.

Pursuant to section 6(4) of the Labour Relations Act, the Board also directed a concurrent vote among the professional engineers to determine if they wish to be included in the bargaining unit with other employees.

In an application for certification and an unfair labour practice complaint, the parties raised several preliminary issues.

The Board declined to dismiss the union's section 8 application without a hearing on the merits, finding that the adequacy of membership support must be assessed in light of all circumstances.

The Board ordered the union to proceed first with its evidence on all aspects of the case.

The Board also refused the respondent's request to cross-examine the Form 9 declarant, as there were no allegations of false statements or irregularities regarding the mailed membership evidence.

Finally, the Board ordered the union to produce any tape recordings and transcripts of statements made by company officials on which it intends to rely in the proceedings.

The applicant trade union applied for certification to represent security guards employed by the respondent.

The respondent raised a preliminary objection under section 12 of the Labour Relations Act, arguing that the applicant was affiliated with the United Steelworkers of America (USWA), an organization that admits non-guards to membership.

The Board examined a Service Contract between the applicant and the USWA, which provided for the USWA to supply support services, office space, and organizing assistance in exchange for a portion of union dues.

The Board concluded that the close relationship established by the Service Contract constituted a direct or indirect affiliation within the meaning of section 12, precluding certification unless the applicant's subsequent Charter challenge succeeds.

The respondent employer requested a variance of a previous Board decision to amend the style of cause, seeking to be identified by its facility name rather than its corporate name.

The Ontario Labour Relations Board denied the request, holding that the legal entity which is the employer remains the corporation itself, and that restricting bargaining rights to a specific facility is properly accomplished through the bargaining unit description rather than the style of cause.

During a hearing to determine whether the grievor was an employee or an independent contractor, the Ontario Labour Relations Board made several preliminary evidentiary rulings.

The Board conditionally admitted photocopies of computer print-outs, requiring the respondent to produce the originals and the names of the individuals involved.

The Board also ordered the respondent to produce 1987 payroll documents and contracts for both employees and contractors pursuant to a summons duces tecum, finding them arguably relevant to the grievor's employment status.

The applicant trade union applied for certification for a bargaining unit of banquet department employees at the respondent hotel.

The applicant sought to exclude part-time employees and students from the unit, which the respondent opposed.

The Board found that the usual practice of separating full-time and part-time employees did not apply, as all banquet employees worked on an on-call basis, shared common terms and conditions, and formed a single amorphous group without a distinct division based on hours worked.

The Board determined the appropriate bargaining unit without the requested exclusions and directed the matter to be listed for a further hearing on outstanding issues.

The Carpenters' union filed unfair labour practice complaints against the Labourers' union and various employers, challenging subcontracting clauses in residential framing collective agreements.

The respondents moved to dismiss the complaints due to delay and abuse of process.

The Ontario Labour Relations Board found that the Carpenters had delayed excessively in prosecuting the complaints, causing substantial prejudice to the respondents and striking at the heart of established bargaining relationships.

The Board exercised its discretion under section 89(4) of the Labour Relations Act to decline to inquire into the complaints and dismissed them.

The applicant union applied for a direction that a first collective agreement be settled by arbitration under section 40a of the Labour Relations Act.

The union alleged that the respondent private school failed to make reasonable or expeditious efforts to conclude an agreement and adopted uncompromising bargaining positions without reasonable justification regarding management rights, seniority, and layoffs.

The Board found that while the bargaining process was unsuccessful, the respondent had reasonable justification for its positions, given its financial deficit, declining enrolment, and the need to remain competitive with other private schools.

The application was dismissed, with one Board member dissenting.

The applicant trade union sought certification for a bargaining unit consisting of all occasional teachers in the respondent's secondary panel in the Regional Municipality of Peel.

The respondent disputed the composition of the bargaining unit, arguing against the separation of secondary and elementary panel occasional teachers.

The Ontario Labour Relations Board determined that the secondary panel occasional teachers constituted an appropriate bargaining unit, consistent with its established practice of mirroring the historical dichotomy between elementary and secondary school teachers.

A pre-hearing representation vote resulted in more than fifty percent of the ballots cast in favour of the applicant, and the Board directed that a certificate issue to the applicant.

The applicant unions referred a grievance to the Board.

The respondent employer raised a preliminary objection, arguing that the unions had abandoned their bargaining rights due to a lengthy period of inactivity.

The Board found that the unions had not abandoned their bargaining rights in the industrial, commercial, and institutional (ICI) sector, noting that under the province-wide bargaining provisions of the Labour Relations Act, the failure of an affiliated bargaining agent to administer a provincial agreement locally does not constitute abandonment by the employee bargaining agency.

The preliminary objection was dismissed and the matter was referred for a hearing on the merits.

The applicant employer referred a grievance to the Ontario Labour Relations Board alleging that the respondent union violated the no-strike provision of their collective agreement.

The employer claimed that the union president instigated work stoppages at multiple construction sites after the employer's president refused to provide him with an unsecured personal loan.

The Board found that union representatives, acting on the president's instructions, directed employees to cease working, constituting an illegal strike under the Labour Relations Act.

The Board granted a declaration that the union violated the collective agreement and ordered the union to compensate the employer for all resulting losses, including wages paid to employees for hours not worked during the stoppages.

The intervener employer brought a preliminary motion to dismiss the complainant's unfair labour practice complaint on the basis of extreme delay.

The complainant had been discharged in September 1984, and his grievance was withdrawn by the respondent union in April 1985.

The complaint was not filed until August 1987.

The Board considered the reasons for the delay, which included issues with obtaining and maintaining a legal aid certificate, a change of address, and changing solicitors.

The Board found that while there was some unwarranted delay, it was not so extreme as to warrant dismissal without a hearing on the merits, particularly since the respondent union did not seek dismissal and the intervener established no specific prejudice.

The motion to dismiss was denied.

The applicant union applied for certification for a unit of construction labourers employed by the respondent.

A group of objecting employees filed a petition opposing the certification.

The Board found that the petition was not a voluntary statement of desire, as it was circulated by an employee during working hours and signed by a foreman who directed another employee to sign it.

Given the perceived management involvement, the Board declined to order a representation vote and granted the certification based on the union's membership evidence.

The complainant filed an unfair labour practice complaint against her union and employer.

The parties signed Minutes of Settlement where the complainant agreed to withdraw the complaint in exchange for $2,500.

After receiving and cashing the cheque, the complainant retained counsel and attempted to repudiate the settlement, arguing she was unrepresented when she signed it and the amount was inadequate.

The Board held that the lack of legal representation does not negate a settlement agreement and that allowing parties to repudiate settlements would undermine the resolution process.

The complaint was withdrawn in accordance with the settlement.