S. A. Tacon

During a hearing for an application for certification, an issue arose during the cross-examination of a witness regarding a non-pay allegation.

The union requested that the witness be compelled to create twenty specimen signatures or produce documents containing twenty original signatures for comparison by an expert witness.

The Board ruled that the witness had the right to consult with counsel during his testimony under the Statutory Powers Procedure Act.

The Board declined to compel the creation of new specimen signatures but directed the witness to produce existing documents in his possession containing twenty original signatures to facilitate the hearing.

The complainant alleged that the union breached sections 72(4) and 68 of the Labour Relations Act during a ratification vote.

The complainant argued that a show of hands to endorse the bargaining committee's recommendation violated the requirement for a secret ballot vote.

The Board found that a secret ballot vote was properly conducted and that the show of hands merely concluded the discussion without affecting the secret ballot.

The Board also found no evidence of arbitrary, discriminatory, or bad faith conduct by the union.

The complaint was dismissed.

The applicant sought to introduce a report and supplementary report prepared for the Ministry of Labour in 1980 by George W. Adams to show the mischief that existed prior to certain amendments to the Labour Relations Act.

The respondent objected to their admissibility.

The Ontario Labour Relations Board ruled that the reports were admissible for the purpose sought by the applicant.

The Board directed the parties to file written submissions on the probative value of the material.

The union applied for certification of a bargaining unit of the respondent's employees.

The parties disputed whether four temporary agency workers were employees of the respondent for the purposes of the Labour Relations Act.

Applying the criteria from K Mart Canada Limited, the Board found that the respondent exercised overriding control over the workers, including directing their duties, bearing the ultimate burden of their remuneration, and controlling discipline and discharge.

The Board concluded the four persons were employees of the respondent and included them in the bargaining unit for the purposes of the count.

The Board also directed a hearing to determine the voluntariness of a petition filed by employee objectors.

The complainant alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to assist him in criminal proceedings and by its handling of his discharge grievance, including agreeing to admit a criminal trial transcript at arbitration.

The employer and union brought preliminary motions to dismiss the complaint for failing to disclose a prima facie case.

The Board dismissed the complaint against the employer, as section 68 applies only to trade unions.

The Board also dismissed the allegations regarding the criminal proceedings, finding the duty of fair representation does not extend beyond the scope of the union's statutory authority as exclusive bargaining agent.

However, the Board declined to dismiss the allegations concerning the union's handling of the grievance prior to arbitration and its agreement to admit the transcript, allowing those matters to proceed.

The Toronto Transit Commission filed an unfair labour practice complaint against the union after the union expelled several inspectors from membership.

During a strike, the TTC had directed the inspectors, who were excluded from the bargaining unit as managerial personnel, to perform bargaining unit work.

The union passed a resolution revoking the local membership of any inspector who complied, which resulted in the loss of their departmental seniority rights upon return to the bargaining unit.

The Board dismissed the complaint, finding that the strike provisions of the Labour Relations Act (sections 74, 76, and 78) apply only to 'employees' and not to managerial persons.

The Board further held that section 70 does not protect managerial persons seeking to enforce seniority rights under a collective agreement.

The complainant, an employee in the procurement office, refused to work citing health concerns related to secondhand smoke.

The employer investigated, accommodated the non-smoking employees by segregating them, and clarified its smoking policy.

The complainant continued to refuse to work, demanding an immediate total smoking ban, and was subsequently suspended for one day and then three days.

She filed a complaint alleging the suspensions and other employer actions were reprisals under the Occupational Health and Safety Act.

The Board dismissed the complaint, finding that the complainant's continued refusal was not motivated by bona fide health and safety concerns, but rather by anger over other workplace issues, and that the employer's disciplinary actions were justified and not in violation of the Act.

The complainant brought preliminary motions requesting that the Ontario Labour Relations Board produce an official transcript of the proceedings, or alternatively, that the complainant's representative be permitted to tape record the hearing.

The Board dismissed the motion for an official transcript, finding no requirement under the Charter or common law natural justice to maintain a verbatim record, and declining to exercise its discretion to do so due to concerns over cost, delay, and formality.

However, the Board granted the request to tape record the proceedings, provided it is done unobtrusively and solely for the purpose of supplementing handwritten notes, not as an official record.

The union brought an application for a related employer declaration under section 1(4) of the Labour Relations Act and an unfair labour practice complaint under section 89.

The union alleged that the employer's purchase of a non-unionized plant, transfer of work, and subsequent layoff of bargaining unit employees were motivated by anti-union animus.

The Board found that the employer's actions were motivated by bona fide business reasons, including the declining market and obsolete equipment at the unionized plant.

The unfair labour practice complaint was dismissed.

The Board granted the related employer declaration on consent but declined to extend the geographic scope of the collective agreement to the non-unionized plant.

The applicant applied for an exemption from union dues under section 47 of the Labour Relations Act.

The Board dismissed the application as premature because there was no collective agreement in force between the respondent trade union and the employer.

Section 47 requires a collective agreement containing a mandatory dues provision to be in place before the Board has jurisdiction to grant an exemption.

The union applied for certification and filed an unfair labour practice complaint alleging the employer terminated several employees for their union organizing activities.

The Board found that the employer's reasons for the terminations were a pretext to cloak anti-union animus, violating sections 64, 66, and 70 of the Labour Relations Act.

Given the severity of the employer's misconduct at the inception of the organizing campaign, the Board concluded that the true wishes of the employees were not likely to be ascertained in a representation vote.

The Board exercised its discretion under section 8 of the Act to certify the union without a vote, finding it had adequate membership support for collective bargaining.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether Critical Care Instructors are employees.

The respondent hospital argued the application failed to meet the informational requirements set out in The Windsor Star and requested dismissal or a hearing.

The Board found that the applicant's materials satisfied the requirements and that a 'question' had arisen regarding the status of the disputed individuals.

The Board appointed a Board Officer to inquire into their duties and responsibilities.

During a complaint alleging a violation of section 24 of the Occupational Health and Safety Act, the complainant summoned an inspector with the Occupational Health and Safety Branch to testify.

The Ministry of Labour waived the inspector's non-compellability under section 34(2) of the Act, and the Director authorized the inspector to testify under section 34(3).

The respondent objected, arguing that policy considerations against an inspector testifying voluntarily should preclude the testimony.

The Board held that section 34(2) only addresses compellability, not competence, and found the inspector to be a competent witness.

During a hearing for a reconsideration of a Board decision granting early termination of a collective agreement, the respondent company brought a motion to dismiss the interveners' application after the interveners concluded their evidence.

The company argued it should not have to elect whether to call evidence.

The Board characterized the motion as analogous to a non-suit motion in civil proceedings and directed that the company and the applicant union (who supported the motion) be put to their election as to whether they intend to call evidence before ruling on the motion.

The applicant, an individual employee, brought an application under section 106(2) of the Labour Relations Act seeking a determination that another individual was not an employee for the purposes of the Act by virtue of the managerial exclusion in section 1(3)(b).

The Board dismissed the application, affirming established precedent that section 106(2) is intended only to resolve disputes between the immediate parties to a collective bargaining relationship (the trade union and the employer).

As no question had arisen between the bargaining parties, the procedure was not available to an individual employee.

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.

During a hearing for a request to reconsider a decision consenting to the early termination of a collective agreement, the intervening union (USWA) sought to introduce union membership cards to corroborate evidence of an organizing campaign.

The incumbent union and the employer objected, arguing that if the cards were admitted, they should be entitled to examine them, including the identities of the signatories.

The Board held that section 111(1) of the Labour Relations Act protected the confidentiality of the cards even outside a certification application.

Balancing the limited probative value of the cards as hearsay evidence against the potential prejudice to the other parties and the legislative intent to protect union membership confidentiality, the Board exercised its discretion to refuse to admit the membership cards into evidence.

The complainant alleged that the respondent union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to represent him before the Workers' Compensation Appeals Tribunal (WCAT) and in related court proceedings.

The union raised preliminary objections, arguing that the Board lacked jurisdiction because the duty of fair representation applies only to collective bargaining and the administration of the collective agreement.

The Board upheld the preliminary objections, finding that representation at WCAT and in civil proceedings falls outside the scope of the union's statutory authority as exclusive bargaining agent.

The complaint was dismissed without a hearing on the merits.

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 filed an unfair labour practice complaint alleging the employer violated the duty to bargain in good faith by refusing to negotiate pension issues separately from a joint union committee.

The employer argued the union had irrevocably ceded its right to bargain pensions separately by participating in the joint committee in previous rounds.

The Board held that the union was entitled to unilaterally withdraw from the joint committee with adequate notice.

The employer violated section 15 of the Labour Relations Act by pressing its demand for joint bargaining to impasse and refusing to receive the union's pension proposals.

However, the employer's direct communications with employees regarding its bargaining position were found to be permissible.