W.F. Rutherford

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 complainants, having been partially successful in their unfair labour practice complaints against the respondent union, sought reconsideration of the Board's decision declining to award them costs.

The complainants argued that internal union resolutions obligated the union to pay their costs and that the union's refusal to do so while paying the individual respondents' legal fees constituted a breach of the duty of fair representation.

The Board dismissed the request for reconsideration, reaffirming its long-standing policy against awarding costs in section 89 complaints.

The Board noted that it lacks jurisdiction to enforce internal union resolutions or supervise union expenditures, and found that the complainants' mixed success and the protraction of the hearing by both sides further militated against an award of costs.

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.

During an application for certification, the respondent employer alleged that two employees had not paid the required one dollar fee when signing union membership cards.

The Ontario Labour Relations Board held an evidentiary hearing to assess the credibility of the witnesses.

The Board found that the union collector had engaged in deliberate misconduct by telling the employees not to worry about paying the fee and to conceal the non-payment.

Consequently, the Board rejected all 21 membership cards collected by that individual.

A dissenting Board member would have only rejected the two specific cards in question.

The applicant union sought certification to represent a bargaining unit of home day care providers working for the respondent.

The respondent argued the providers were independent contractors, while the union argued they were dependent contractors.

The Board found that the providers were in a position of economic dependency on the respondent, as they relied mainly on the respondent for work.

Furthermore, the providers were under an obligation to perform duties analogous to an employee, given the extensive regulation of their activities and the respondent's role in enforcing those regulations.

The Board concluded the providers were dependent contractors and directed the counting of the ballots.

A dissenting member found the providers were not dependent contractors.

The applicant union filed a grievance alleging that the respondent employer violated the Mainline Pipeline Agreement during pipeline construction along Highways 35/115.

The respondent argued that the work was governed by the Distribution Pipeline Agreement and that it had complied with its terms.

The Board interpreted the definitions of 'mainline' and 'distribution' pipelines in the collective agreements, finding the language unambiguous.

The Board concluded that the work in question, which was downstream from the first metering station where gas pressure was reduced and transformed, fell squarely within the definition of distribution pipeline work.

The grievance was dismissed.

The applicant union sought a declaration of successor status following a purported merger with the Staff Association.

The Board found that while the Staff Association had properly amended its constitution to permit mergers, it failed to hold a separate, required vote to approve the specific merger with the applicant.

As the employees had only voted on the constitutional amendment and not the merger itself, the Board dismissed the application.

In a certification application, the employer requested reconsideration of a Board direction requiring it to provide copies of employee lists to the applicant union prior to the next hearing date.

The employer argued that Board practice required such lists to be examined only in the presence of a Labour Relations Officer to prevent abuse.

The Board dismissed the reconsideration request, holding that natural justice requires the union to have access to the information, and that providing the lists in advance promotes efficiency and narrows issues without necessarily requiring an officer's presence.

The complainant filed a reprisal complaint under section 24 of the Occupational Health and Safety Act, alleging he was dismissed for attempting to enforce the Act.

The respondent employer raised preliminary objections, including that supervisors lack status to bring such complaints and that the complainant failed to provide adequate particulars.

The Board ruled that supervisors are subsumed under the definition of 'worker' and therefore have status to bring a section 24 complaint.

However, after providing the complainant multiple opportunities to provide adequate particulars regarding his allegations, which he failed to do, the Board dismissed the complaint.

The applicants applied to terminate the respondent union's bargaining rights under section 57 of the Labour Relations Act.

To succeed, they needed to prove that at least 45 per cent of the bargaining unit employees voluntarily signed a petition in support of the application.

The applicants failed to lead evidence regarding the origination and circulation of some signatures, and a key witness who collected signatures did not attend the hearing.

The Board refused to grant an adjournment to allow the witness to be summoned, noting the applicants' failure to issue a summons prior to the hearing.

As the applicants could not establish that the requisite number of signatures were voluntary, the application was dismissed.

The complainant union filed a complaint under section 91 of the Labour Relations Act regarding a jurisdictional dispute over heat recovery operator positions at a sewage treatment plant.

As a preliminary matter, the Board considered whether the complainant had abandoned its bargaining rights with the respondent municipality.

The Board found that the complainant had not engaged in collective bargaining since 1981, failed to respond to a notice to bargain, and acquiesced to the respondent's position that similar positions fell within another union's bargaining unit.

The Board concluded that the complainant had abandoned its bargaining rights and dismissed the complaint.

The applicant trade union applied for certification, filing membership evidence for more than 55 per cent of the employees in the bargaining unit.

The objectors alleged that union organizers misled employees by stating that the initiation fee was one dollar during the campaign but would be ten dollars later, thereby coercing them into signing membership cards.

The Board found that while one organizer improperly used the two-tier fee structure as a sales tactic, the remaining membership evidence was reliable and still represented more than 55 per cent of the unit.

The Board declined to exercise its discretion to order a representation vote and directed that a certificate issue to the applicant.

The applicant union sought certification for a bargaining unit of full-time Heritage Language Instructors employed by the respondent school board.

The Board determined that a unit limited to Heritage Language Instructors was not appropriate, finding that all instructors employed by the board shared a community of interest and should be included in a single unit.

The Board also considered whether to exclude part-time instructors from the unit.

Departing from its traditional 24-hour rule for part-time employees, the Board concluded that instructors working 10 hours or less per week should be excluded from the bargaining unit.

The applicant union applied for certification and filed an unfair labour practice complaint against the respondent travel agency.

The respondent challenged the Ontario Labour Relations Board's jurisdiction, arguing its business of assembling and selling international and interprovincial package tours fell under federal jurisdiction as either integral to a federal work or undertaking (air/rail travel) or as an extra-provincial undertaking itself.

The Board dismissed the preliminary objection, finding that the respondent's business was not integral to the operation of an air or rail service, but rather utilized those services for its own customers.

Furthermore, the Board held that the respondent was not engaged in an extra-provincial undertaking, as its primary business was assembling and selling tours within Ontario, and the extra-provincial services were performed by contracted third parties.

The Board affirmed its jurisdiction and directed the matters to be relisted for hearing on the merits.

The applicant trade union sought a related employer declaration under section 1(4) of the Labour Relations Act against three construction companies.

The respondents raised a preliminary objection that section 1(4) violates the guarantee of freedom of association under section 2(d) of the Charter.

The Board dismissed the constitutional challenge, finding that section 1(4) protects rather than infringes freedom of association by preserving existing bargaining rights.

On the merits, the Board applied the Walters Lithographing criteria and found that the three companies carried on associated or related activities under common control or direction.

The Board declared the companies bound by the collective agreement and ordered remedies for unfair labour practices.

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

The respondent employer argued that several individuals, including registered nursing assistants, exercised managerial functions and should be excluded from the bargaining unit.

The Board previously directed the employer to provide detailed written submissions outlining the alleged managerial duties.

The employer failed to provide sufficient evidence or concrete instances of managerial functions, instead submitting unsigned job descriptions and bald assertions.

The Board declined to inquire further into the disputed individuals' status, refused to reopen the hearing or direct a representation vote, and issued a final certificate to the union.

During a certification hearing, the applicant union sought to cross-examine the representative of the objecting employees about his duties and responsibilities to challenge the voluntariness of a statement of desire.

The respondent objected, arguing the parties had already agreed the representative was an employee in the bargaining unit.

The Board overruled the objection, holding that while such an agreement creates a rebuttable presumption that the employee does not exercise managerial functions, it does not preclude evidence regarding how other employees perceived the representative's duties and how that perception affected the voluntariness of their signatures.

The applicant union applied for certification in the construction industry.

The respondent employer argued the bargaining unit should be limited to the residential sector.

The Board ruled that the unit applied for, relating to the industrial, commercial and institutional sector, was appropriate under s. 144(1) of the Labour Relations Act.

The Board appointed a Labour Relations Officer to inquire into the employee status of several individuals.

The Board also declined to conduct its own inquiry into an allegation of conditional payment for union membership, ruling that the respondent must prove the allegation in the ordinary course.

The union filed a complaint alleging the employer violated the duty to bargain in good faith under section 15 of the Labour Relations Act.

The parties had agreed on the effective commencement date of a one-year collective agreement during mediation.

Following a strike, the union ratified the agreement based on this understanding.

The employer subsequently refused to sign the agreement, claiming the commencement date had never been agreed upon.

The Board found the employer's testimony unreliable, concluded that an agreement on the date had been reached, and held that reneging on this agreed term after ratification constituted bad faith bargaining.

The employer was directed to execute the collective agreement.

The complainant union alleged that the grievor was discharged contrary to section 66 of the Labour Relations Act due to his union activities during a legal strike.

The employer maintained the grievor was discharged for intimidating and threatening conduct on the picket line when he reached into a company van transporting replacement workers.

The Board found the employer met its burden under section 89(5) to prove the discharge was not motivated by anti-union animus, but rather by the grievor's picket line misconduct.

The Board also found no breach of the Act regarding the employer's failure to reinstate the grievor under the 'no reprisals' clause, as the settlement was prospective.

The complaint was dismissed.