Robert Herman

In an application for certification, the union brought a motion for non-suit regarding the voluntariness of an employee petition after the objectors and employer had presented their evidence.

The union requested that it not be put to its election on whether to call evidence before arguing the motion.

The Board held that it has the discretion to determine its own practice and procedure and is not strictly bound by civil court rules requiring an election on a non-suit motion.

The Board allowed the union to argue the motion without electing, noting that doing so was fair, sensible, and avoided unnecessary delay and expense.

The applicant filed a subsequent application for a declaration terminating the bargaining rights of the respondent unions after the terminal date of an earlier, identical application by a different employee.

The Board deferred the subsequent application pending the resolution of the earlier one, pursuant to section 105(3) of the Act.

The applicant requested reconsideration, arguing a breach of natural justice and procedural errors.

The Board denied the request, finding that the parties had a full opportunity to make written submissions and that deferral was appropriate to avoid duplicative proceedings.

In a construction industry certification application, the applicant requested a pre-hearing representation vote.

Because no employees were at work on the terminal date, applying the Board's customary dual-date voter eligibility rules would result in no eligible voters.

The Board held a hearing to determine the appropriate voter eligibility date.

The Board departed from its traditional practice, ruling that in pre-hearing construction applications, voter eligibility will be determined solely based on those at work in the voting constituency on the application date, to reflect the transient nature of the construction workforce and reduce the potential for gerrymandering.

In a jurisdictional dispute over concrete finishing work, the Board ruled on several preliminary objections regarding the admissibility of evidence and the pleading of material facts.

The Board held that the Cement Masons could not lead evidence of area practice because they failed to include job lists in their pre-hearing brief, as required by Practice Note #15.

The Board also restricted area practice evidence to the ICI sector but allowed evidence of province-wide employer practice.

The Board refused to restrict evidence of employer practice based on the specific bargaining relationships of the employers.

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

The union's constitution restricted membership to employees of a different company, and the union had no established practice of admitting persons to membership without regard to these eligibility requirements.

Applying section 105(4) of the Labour Relations Act and the Supreme Court of Canada's decision in Metropolitan Life Insurance Company, the Board found that the employees could not be considered members of the applicant.

The application for certification was dismissed.

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

A group of employees filed a petition opposing the certification.

The Board found that the union had sufficient membership support for automatic certification, subject to the voluntariness of the petition.

After hearing evidence from the objectors, the union moved for a non-suit.

The Board granted the motion, finding the petition involuntary because it was circulated with the assistance of individuals closely associated with management and in a context where the employer had expressed opposition to the union.

As the petition was given no weight, the Board issued a certificate to the applicant union.

The applicant union filed an application for certification and requested a pre-hearing representation vote.

The parties disputed the appropriate bargaining unit and whether the application was a displacement application, as the applicant argued the intervener did not have a valid collective agreement with the respondent employer.

The Board directed that the pre-hearing representation vote be taken without delaying to resolve the disputes, in accordance with its standard practice.

The Board ordered that the ballot boxes be sealed and challenged ballots segregated pending further direction.

The applicant union filed a grievance against the respondent employer.

In a prior decision, the Board determined liability but remained seized on damages.

Before the damages issue could be resolved, the original Vice-Chair died.

A new panel, with a substituted Vice-Chair and the original Board members, was convened.

The respondent argued the Board lacked jurisdiction to substitute Vice-Chairs and that the matter must recommence from the beginning.

The Board held it had jurisdiction to continue, as damages appeared to be a discrete issue from liability.

The matter was relisted to determine if the prior decision was sufficiently clear to assess damages without rehearing evidence.

The applicant union filed a grievance against the respondent general contractor alleging a breach of a subcontracting clause after work was subcontracted to a company bound only to the intervener union.

The issue was whether these circumstances constituted a jurisdictional dispute under section 93(1) of the Labour Relations Act, even though the applicant did not directly demand the work from the subcontractor.

The Board held that the grievance itself, communicated to the subcontractor, constituted a demand for the work in practical terms.

The Board concluded it had jurisdiction to entertain the matter as a jurisdictional dispute.

The applicants filed complaints regarding a work assignment dispute, alleging unfair labour practices under section 89 and seeking enforcement of a jurisdictional dispute settlement under section 91(14) of the Labour Relations Act.

The respondents raised preliminary objections, arguing the section 89 complaint failed to disclose a prima facie case and the Board lacked jurisdiction under section 91(14).

The Board dismissed the section 89 complaint, finding it was essentially a work assignment dispute.

However, the Board held it had jurisdiction to entertain the section 91(14) complaint because the Plan Administrator had made a clear decision.

The Board deferred consideration of the section 91(1) complaint until the section 91(14) matter was resolved.

The applicant union filed a grievance under section 124 of the Labour Relations Act regarding a work assignment currently being performed by the intervener union.

The Board determined that the grievance was essentially a jurisdictional dispute over work assignment.

The Board adjourned the section 124 application to allow the parties to file a jurisdictional dispute under section 91 of the Act, directing that both matters be listed and heard together if a jurisdictional dispute is filed.

The Board heard procedural matters regarding multiple certification applications filed by construction trade unions (Carpenters, Labourers, Painters) and the RWDSU for employees of Guillot Builders Limited.

The Board ruled that the standard craft bargaining units were appropriate, denying RWDSU's request for an all-employee unit or to amend its applications to seek craft units.

RWDSU's applications were deferred pending the resolution of the craft unions' applications.

The Board also denied an adjournment request from an employee objector seeking to retain counsel, and set out the procedure and order of evidence for the remaining issues to be heard.

The Ontario Nurses' Association (ONA) alleged that a rationalization plan transferring obstetrics and paediatrics services from St. Mary's General Hospital to Kitchener-Waterloo Hospital constituted a 'sale of a business' under section 63 of the Labour Relations Act.

The Board found that a sale of part of St. Mary's business had occurred and that the employees were intermingled.

However, because ONA represented only a small percentage of the resulting 'all nurses' bargaining unit at Kitchener-Waterloo, the Board declined to order a representation vote and declared that ONA no longer held bargaining rights.

The Board also found that Kitchener-Waterloo breached section 66 of the Act by treating St. Mary's nurses as new hires rather than offering them preferential transfer rights, doing so specifically to avoid successor rights obligations.

The respondent employer requested that the Board reconsider its 1986 decision certifying the union, arguing that the employer is engaged in radio communications and falls within federal jurisdiction.

The Board declined to reconsider the decision, noting that the employer participated in the original certification application without raising the issue, and five years had passed since the certificate was issued.

The applicant union sought certification for its traditional craft bargaining unit, arguing that the respondent's shipbuilding and repair business fell within the definition of the construction industry under the Labour Relations Act.

The applicant relied on recent amendments to the Occupational Health and Safety Act, which deemed shipbuilding a 'project'.

The Board ruled that repairing or building ships in dry docks does not constitute a business in the construction industry under the Labour Relations Act.

Following this ruling, the applicant withdrew its application with leave.

The respondent employer requested an adjournment of an unfair labour practice complaint hearing because its key witness, a lawyer involved in related proceedings, was unavailable.

The Board noted that the witness had not been summonsed by the respondent and chose to attend another proceeding.

However, the Board granted the adjournment on the condition that the respondent undertake not to take any reprisals against employees summonsed by the union to attend Board proceedings, and that it remove any disciplinary action already taken against the grievors.

The Board also directed the respondent to post copies of the decision in the workplace.

The Labourers' Union filed a jurisdictional dispute complaint under section 91 of the Labour Relations Act regarding the operation of heavy machinery on a demolition project.

The Operating Engineers raised a preliminary objection that the Board lacked jurisdiction because they had not required the employer to assign the work to them.

The Board found that the Operating Engineers had made an explicit demand to the subcontractor, Greenspoon, for the work in question, both during a meeting and in a private conversation.

Consequently, the Board dismissed the preliminary objection, concluding it had jurisdiction to consider the complaint.

The applicant employee filed an application for termination of bargaining rights (decertification) against the respondent union.

The Board found that the petition did not express the voluntary wishes of the employees, as the applicant was closely associated with another employee who was perceived as linked to management, and the employer had previously demonstrated anti-union animus by allowing anti-union notices to remain posted and failing to discipline employees who engaged in an anti-union strike.

The application was dismissed, with one Board member dissenting.

The applicant union applied to displace the incumbent union as the bargaining agent for the employees.

Following a pre-hearing representation vote won by the applicant, the incumbent union and an employee filed objections and an unfair labour practice complaint, alleging the applicant distributed false and coercive campaign literature.

The Board dismissed the complaint, finding no prima facie case of intimidation or coercion under sections 70 and 71 of the Labour Relations Act.

The Board also declined to order a new representation vote, concluding that the campaign propaganda, even if exaggerated or false, did not undermine the reliability of the secret ballot.

The complainant employer filed a complaint under section 89(7) of the Labour Relations Act alleging that the respondent union and employee breached the confidentiality clause of a prior settlement agreement.

The settlement, which resolved an occupational health and safety complaint, required the employer to pay $7,500 to the union and included a strict confidentiality provision.

Months later, the employee and a union official disclosed to a newspaper reporter and another employee that a cash settlement had been paid.

The Board found that disclosing the fact of a cash payment, even without specifying the amount or the exact payee, constituted a breach of the confidentiality requirement.

The Board ordered the union to repay the $7,500 to the employer as stipulated in the settlement.