Thomas S. Kuttner

The respondent employer requested that the Ontario Labour Relations Board reconsider its decision finding that construction inspectors were employees and not excluded by reason of exercising managerial functions.

The employer argued that the Board ignored compelling evidence and that the 14-month delay in issuing the decision prejudiced its expectations.

The Board dismissed the request, finding no new evidence was adduced, no error in its holistic assessment of the evidence, and that delay alone does not justify reconsideration, especially where it would prejudice the union's representation rights.

The complainant union filed an unfair labour practice complaint under section 89 of the Labour Relations Act, challenging the validity of subcontracting clauses in the respondent union's collective agreements.

The respondent and interveners brought a preliminary motion to dismiss the complaint without a hearing.

The Board found that the complainant had previously filed an identical complaint years earlier, which had been adjourned sine die.

The Board held that the excessive delay in prosecuting the matter and the attempt to litigate the same issues in a new complaint constituted an abuse of process.

The Board exercised its discretion under section 89(4) to refuse to entertain the complaint and dismissed it, while directing the Registrar to relist the original adjourned complaint to determine its status.

The applicant union sought a determination under section 106(2) of the Labour Relations Act that two individuals performing pole line construction for the respondent were dependent contractors and thus employees.

The Board applied the 11-factor test from Algonquin Tavern to assess the relationship.

The Board found that the individuals operated a specialized, independent business, supplied their own equipment, set their own unit prices, and retained control over their work methods.

Consequently, the Board concluded they were independent contractors, not dependent contractors, and dismissed the application.

The applicant union applied for certification to represent carpenters employed by the respondent in the construction industry.

The parties agreed on the bargaining unit description but disputed the list of employees for the count.

The core issue was whether three carpenters working at the respondent's site were employees of the respondent or of a project management company, Sant Developments.

Applying the Board's seven-fold test for determining employer status, the Board found that the carpenters remained employees of Sant Developments, which hired, paid, and directed them, rather than the respondent.

As the union had the requisite support among the actual employees of the respondent, certificates were issued.

The applicant employee sought to terminate the bargaining rights of the respondent union.

The union argued the application was untimely and should be postponed pending the resolution of outstanding unfair labour practice complaints against the employer.

The Board found the application timely and declined to postpone the hearing.

However, on the merits, the Board dismissed the application, finding that the applicant failed to establish that the statement of desire (petition) was voluntary, particularly given the history of employer unfair labour practices and the applicant's failure to call the key employee who originated the petition to testify.

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.

The applicant trade union applied for certification in the construction industry.

The respondent employer argued that the two sheet metal workers referred to it by the union's hiring hall were independent contractors, not employees, due to the transitory nature of their engagement.

The Board held that the workers were employees, noting that short-term hiring hall referrals are characteristic of employment relationships in the construction industry.

The Board granted the application for certification.

The applicants sought a declaration terminating the bargaining rights of the respondent union.

They submitted a petition signed by employees indicating they no longer wished to be represented by the union.

The Board found that the petition was tainted by the involvement of a junior member of management, who had directed the lead applicant to her husband for assistance in filing the application.

Due to this management involvement, the Board concluded the petition was not a voluntary expression of the employees' desires and dismissed the application.

One Board Member dissented, arguing the management contact was incidental and did not constitute improper influence.

The applicants sought to terminate the bargaining rights of the respondent union representing maintenance employees of a trucking company.

The intervener employer argued that its business, which involved hauling freight internationally, was a federal undertaking outside the Board's jurisdiction.

The Board applied constitutional principles and found that the employer's continuous and regular international haulage constituted an undertaking extending beyond the limits of the province.

Consequently, the labour relations of its maintenance employees fell under federal jurisdiction.

The Board declared it lacked jurisdiction to entertain the application.