S. Cooke

Dissenting opinion of Board Member F. W. Murray regarding an application for certification.

The dissenting member would have found that the persons subject to the application are not employees within the meaning of the Labour Relations Act, as the rehabilitative aspect of their employment is paramount and overrides the normal trappings of an employment relationship.

The applicant filed an application for the termination of the respondent union's bargaining rights.

The union had received interim certification on May 25, 1981, and a final certificate on June 30, 1981.

The application was filed on June 9, 1982.

The issue was whether the one-year period under section 57(1) of the Labour Relations Act, during which a union is protected from termination applications, runs from the date of interim certification or the final certificate.

The Board held that the one-year period commences on the date the final certificate is issued, as interim certification does not finally determine the bargaining unit.

Consequently, the application was dismissed as untimely.

The applicant referred a grievance to the Ontario Labour Relations Board under section 124 of the Labour Relations Act.

The respondent raised a preliminary objection to the Board's jurisdiction, arguing that the collective agreement had expired and the applicant was no longer a party to it.

The Board dismissed the preliminary objection, finding that the grievance was founded on an incident that occurred during the existence of the collective agreement and was filed within the mandatory time limits.

The Board held that the right to refer the grievance to arbitration crystallized during the term of the agreement, and the matter was referred to the Registrar for listing for a further hearing.

The applicant union applied for certification to represent individuals working in the respondent municipality's Helping Hands program.

The respondent argued that the individuals were not employees but participants in a rehabilitation program designed to simulate employment.

The Board found that despite the rehabilitative aspects of the program, the participants worked for wages, were subject to direction and supervision, and had standard deductions taken from their pay.

The Board concluded that the participants were employees within the meaning of the Labour Relations Act and granted the application for certification.

The applicant union applied for certification of two bargaining units of employees at the respondent's North Bay branch.

The union had 50% membership support, which would normally result in a representation vote.

However, the union sought automatic certification under section 8 of the Labour Relations Act, alleging employer intimidation.

The Board found that the branch manager held a meeting where he threatened that unionization and higher wages would lead to a reduction in hours and the potential closure of the branch, prompting employees to sign an anti-union petition.

The Board concluded that these direct threats to job security violated the Act and made it unlikely that the true wishes of the employees could be ascertained in a vote.

Certification was granted for both bargaining units.

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

The respondent employer alleged that the union violated the 72-hour 'silent period' prior to the vote through telephone calls made to employees.

The Board found that while two anonymous calls constituted electioneering, they were isolated incidents not attributable to the union, which had taken reasonable precautions to ensure compliance.

The Board concluded the breaches were not widespread or serious enough to influence the outcome of the vote, declined to direct a new vote, and ordered that a certificate issue to the applicant.

The applicant union alleged that the respondent was a successor employer following the sale of a tavern business and sought a declaration that the respondent was bound by the existing collective agreement.

The respondent argued that it merely acquired the real property and location, not the business itself, and alternatively sought to terminate bargaining rights under section 63(5) of the Labour Relations Act due to a substantial change in the business's character.

The Board found that a sale of a business had occurred, as the respondent acquired the real property, chattels, liquor licenses, and continued the same food operation.

The Board also dismissed the respondent's request to terminate bargaining rights, finding that the essential nature of the work—preparing and serving alcoholic beverages—remained unchanged despite the introduction of adult entertainment.

The Board declared the respondent bound by the collective agreement.

The union referred a grievance to the Board alleging that the employer failed to recognize the grievor as a Union Steward and discharged him without just cause.

The employer argued the grievor was discharged for insubordination and that the union was estopped from appointing him as a steward.

The Board found no insubordination and held the discharge was without just cause, ordering reinstatement with compensation.

However, the Board applied the doctrine of promissory estoppel, finding the union had represented it would not appoint a new employee as a steward, and therefore was estopped from appointing the grievor to that role.

The complainant union filed an unfair labour practice complaint alleging that the employer violated section 43 of the Labour Relations Act by refusing to provide the names of employees for whom union dues were deducted.

The employer argued it was only required to remit an undifferentiated lump sum.

The Board held that the statutory obligation to deduct dues from 'each employee' implicitly requires the employer to identify the specific employees, the amounts deducted, and any arrears.

The employer was directed to provide this information to the union on a monthly basis.

The applicant union applied for certification for employees of Harwill Originals Limited.

The respondents argued that Harwill and Rosengarten Freedman Knitting Co. Ltd. should be treated as a single employer under section 1(4) of the Labour Relations Act.

The Board found that the two companies were under common control and direction and engaged in related activities.

To avoid undue fragmentation, the Board declared them a single employer and combined their employees into one bargaining unit.

Because the union had membership support of less than forty-five per cent in the combined unit, the application for certification was dismissed.

The applicant applied to terminate the union's bargaining rights and filed a statement of desire signed by over 45% of the bargaining unit.

The union subsequently filed a counter-petition reaffirming support, signed by several employees who had signed the initial statement.

The Board held that the counter-petition was relevant and represented the last voluntary expression of the employees' wishes prior to the terminal date.

As the counter-petition reduced the number of employees opposing the union to below 45%, the application for termination was dismissed.

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

The union filed membership evidence for more than 55% of the employees.

A group of employees filed a statement of desire opposing the certification, which included signatures from employees who had previously signed union cards.

The Board found that the statement of desire was not voluntary, as it was circulated by lead hands and a close friend of management shortly after management held a meeting suggesting that unionization could lead to the loss of benefits and lay-offs.

The Board declined to order a representation vote and issued a certificate to the applicant.

One Board member dissented.

The applicant union sought certification for employees of the respondent newspaper.

Following an agreement of the parties, a vote was held among editorial employees to determine their wishes regarding the scope of the bargaining unit.

The overwhelming majority favoured a comprehensive unit including editorial, circulation, advertising, and administration employees.

The Board gave substantial weight to this vote, noting it aligned with its preference for broader-based bargaining units.

Interim certification was granted for the comprehensive unit, pending the resolution of the sports editor's status.

The applicant union applied for certification.

The respondent employer argued that the employees should be divided into two bargaining units: editorial employees and office/clerical/sales employees.

The union sought a single comprehensive unit.

The Board noted its flexible approach to bargaining units in the newspaper industry, as established in The Spectator and Peterborough Examiner.

Given the parties' agreement, the Board directed a representation vote among the editorial staff to determine their preference for a separate or comprehensive bargaining unit.

The Board also appointed a Labour Relations Officer to inquire into the duties of the sports editor and the secretary to the publisher.

The complainant union alleged that the respondent employer committed unfair labour practices by laying off 131 employees and transferring production to another plant as a reprisal for a protracted strike.

The union also alleged that the employer breached its duty to bargain in good faith by failing to disclose its relocation plans during collective bargaining.

The Board dismissed the complaint, finding that the employer's decision to open a new plant was part of a legitimate corporate strategy to rationalize production and was not motivated by anti-union animus.

The Board further held that the employer was not required to disclose its plans during bargaining because it reasonably believed, in good faith, that the new plant would not adversely affect the job security of the existing bargaining unit.

The layoffs were found to be the result of an unanticipated economic downturn rather than a reprisal.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the municipal employer and its non-profit housing corporation were a single employer, effectively requesting the consolidation of two separate bargaining units.

The Board noted that section 1(4) was intended to protect established bargaining rights from being eroded by the creation of separate corporate entities, not to serve as a tool for consolidating existing bargaining units.

The Board found that the union was attempting to achieve through a section 1(4) application what it could not achieve at the bargaining table, and that granting the application would prejudice the employer.

The application was dismissed.

The applicant union sought declarations under sections 1(4) and 63 of the Labour Relations Act.

The union alleged that a sale of a business occurred between Norfinch Developments Limited and Norfinch Construction (Toronto) Limited, and that various Norfinch and Samteit companies were related employers.

The Board found no sale of a business had occurred, as no part of the predecessor's business was transferred to the successor during a corporate break-up.

However, the Board granted a related employer declaration with respect to Norfinch Developments Limited and the Samteit companies, finding they were under common control and direction.

The respondents brought preliminary motions to dismiss an unfair labour practice complaint without a hearing, to defer the matter to internal union procedures, and to require further particulars.

The complaint alleged that the respondents placed the local unions under trusteeship to penalize them for filing a previous complaint.

The Board dismissed the motion to dismiss without a hearing, finding that the complex factual and legal issues required a full hearing.

The Board also declined to defer to the union's internal procedures, noting that the complaint raised fundamental rights under the Labour Relations Act that transcend internal union matters.

Finally, the Board found the particulars provided by the complainants to be sufficient and directed the matter to be listed for a hearing on the merits.

The union filed complaints alleging unfair labour practices and applications for declarations of a sale of a business against the predecessor employer, The Winchester Press Limited, and the successor employers, 2Womor Publications Inc. and Winchester Print.

The Board declared that a sale of a business had occurred to both successor employers.

The Board found that the predecessor employer contravened the Labour Relations Act by refusing to continue to employ a union supporter, Donna MacNaughton, due to anti-union animus.

However, the Board found no contravention regarding the layoff of another employee, Ray Larsen.

The Board also found that the successor employers did not contravene the Act by refusing to hire the grievors, as their decisions were based on bona fide economic considerations and recommendations from the predecessor, without knowledge of the anti-union animus.

The predecessor employer was ordered to compensate MacNaughton for lost wages and benefits.

The applicant employee applied to terminate the respondent union's bargaining rights under section 59(1) of the Labour Relations Act.

The union had failed to give the employer notice to bargain within sixty days following certification.

The union did not file a reply and failed to appear at the hearing.

The Board found that the union had slept on its bargaining rights and provided no explanation for its failure to exercise them.

The Board exercised its discretion to terminate the union's bargaining rights without a representation vote.