W. G. Donnelly

In an application for certification involving seven branch offices of National Trust, the Ontario Labour Relations Board determined whether certain employees exercised managerial functions under section 1(3)(b) of the Labour Relations Act.

The Board examined the duties of seven Assistant Branch Managers/Administration Officers, finding that four exercised managerial functions and were excluded from the bargaining unit, while three did not and were included.

The Board also determined that Administration Officer Trainees did not exercise managerial functions but were excluded from the bargaining unit on community of interest grounds.

Finally, the Board ruled that the original panel was not seized with the remaining issues in the proceeding.

The applicant union, which held bargaining rights for the respondent's employees at a plant in Montreal, Quebec, filed an application for certification and an unfair labour practice complaint after the respondent closed the Montreal plant and relocated its operations to Cornwall, Ontario.

The union alleged that the relocation and the respondent's subsequent refusal to hire the former Montreal employees at the Cornwall plant were motivated by anti-union animus and a desire to escape its collective bargaining obligations.

The Ontario Labour Relations Board dismissed the complaint and the certification application.

The Board found that the decision to relocate was based on legitimate economic reasons, including financial difficulties and a flawed plant design in Montreal.

The Board also concluded that the respondent's hiring practices in Cornwall were not tainted by anti-union animus, noting that the respondent had attempted to interview the Montreal employees for production positions but was thwarted by the union's insistence that all former employees be hired collectively.

Furthermore, the Board held that the Montreal collective agreement did not extend to the Cornwall location, as certification and bargaining rights are provincial matters and cannot be given extra-territorial effect.

The applicant union applied for certification.

The parties disputed the bargaining unit description, specifically whether students employed in a co-operative training program should be excluded from the full-time unit.

The Board reviewed its practice of excluding such students due to their lack of long-term commitment and different terms and conditions of employment compared to permanent full-time employees.

The Board concluded that the student in question lacked a community of interest with the full-time employees and ordered that students in co-operative training programs be excluded from the bargaining unit.

A Board Officer was appointed to inquire into the duties of a disputed supervisory position.

The applicant union filed multiple applications for certification, and pre-hearing representation votes were held.

At the initial hearing, the respondents requested a stay of proceedings, arguing that labour relations in fisheries fall under federal jurisdiction and that a constitutional challenge was pending in the courts.

The Board declined to stay the proceedings, affirming its jurisdiction to determine its own constitutional jurisdiction in the first instance.

The Board also declined the union's request to require notice to the Attorneys General, distinguishing between Charter challenges, where notice is required, and division of powers cases, where the Board is merely determining its threshold jurisdiction.

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

The Board found that the applicant established its status as a trade union within the meaning of the Labour Relations Act, as employees had adopted a constitution and confirmed their membership at a founding meeting.

However, the application for certification was dismissed because the applicant failed to demonstrate sufficient valid membership support by the terminal date.

Most membership cards were signed before the union came into existence, and the confirmatory documents were signed and filed after the terminal date.

The Board declined to extend the terminal date to cure the defective membership evidence.

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 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 respondent employer requested an adjournment of an unfair labour practice hearing to provide notice to 25 employees who continued to work during a lawful strike.

The employer argued that the union's requested remedial relief could affect the rights of these employees.

The Board denied the adjournment request, finding that the interests of the 25 employees were incidental to the main issues between the employer and the union, and that they were not entitled to status as parties or notice of the proceedings.

The applicant trade union applied for certification to represent a bargaining unit of the respondent's employees.

The union filed acceptable membership evidence for over 70 percent of the employees in the unit at the time of the application, exceeding the 55 percent required for automatic certification.

The respondent employer requested that the Board exercise its discretion to order a representation vote due to a planned build-up of the workforce from 70 to 156 employees.

The Board applied its established build-up principles, noting that even at the halfway point of the projected build-up, the union would likely maintain support of approximately 65 percent of the employees.

Consequently, the Board declined to order a representation vote and granted outright certification to the applicant.

The applicant union applied for certification.

During the proceedings, an objecting employee alleged a 'non-pay', claiming she had not paid the required one dollar for her membership card.

While the Board found the evidence on the non-pay conflicting, it discovered that the union official who signed the Form 9 Declaration Concerning Membership Documents had failed to make any inquiries of the actual collectors regarding the collection of the one-dollar payments.

Applying established Board jurisprudence, the Board held that the failure to make the required inquiries rendered the Form 9 declaration invalid.

Consequently, the membership evidence could not be relied upon, and the application for certification was dismissed.

The United Food and Commercial Workers International Union applied for certification for employees at various Swiss Chalet restaurants.

The respondents and interveners argued the applications were untimely due to an existing collective agreement between the Swiss Chalet Employers' Association (SCEA) and the Canadian Union of Restaurant and Related Employees (CURRE).

Local 88 intervened, claiming to be the successor to CURRE following a merger.

The Board found that the attempted merger between CURRE and Local 88 was legally ineffective due to non-compliance with CURRE's constitutional notice requirements.

The Board also determined that the SCEA was a valid employers' organization and its agreement with CURRE was a collective agreement.

However, franchisee respondents who applied for SCEA membership after its formation were not automatically bound by the agreement.

The Board further held that the franchising of locations by Foodcorp constituted a sale of a business under section 63 of the Act.

The respondent employer applied for reconsideration of a previous Board decision, arguing that the individual who signed the voluntary recognition agreement lacked authority to bind the company, and raising issues regarding craft jurisdiction and man-hours.

The employer had failed to attend the original hearing despite receiving notice.

The Board dismissed the application for reconsideration, noting that the employer had the opportunity to raise these issues at the initial hearing and that the evidence sought to be adduced was available at that time.

The Board emphasized the need for finality in its decisions and expressed concern over the six-month delay in bringing the reconsideration request.

The applicant trade union applied for certification for a unit of employees at the respondent's restaurant.

The incumbent union did not oppose the application and abandoned its bargaining rights.

An intervener union initially alleged employer support for the applicant but later withdrew its intervention and abandoned its opposition following a settlement.

The Board found that the applicant had established sufficient membership support and, given the withdrawal of the intervener and the lack of compelling evidence of employer support, exercised its discretion under section 7(2) of the Labour Relations Act to certify the applicant without a representation vote.

The applicant union sought certification for curatorial staff and professional librarians.

The respondent museum argued that 18 curatorial department heads should be excluded as they exercised managerial functions under s. 1(3)(b) of the Labour Relations Act.

The Board found that the department heads functioned more like lead hands or university department heads in a collegial model, lacking independent discretion over hiring, firing, or discipline.

The Board concluded they did not exercise managerial functions and included them in the bargaining unit, granting a final certificate.

The applicant union filed multiple certification applications for employees at various Swiss Chalet restaurants.

The respondent employers and intervener unions argued the applications were untimely due to existing collective agreements.

The applicant alleged that the employer had previously provided covert support to the intervener union by hiring undercover operatives to assist in its organizing campaign, thereby invalidating the existing collective agreements under sections 13 and 48 of the Labour Relations Act.

The Board found that the employer did violate section 64 by providing covert support, but because the intervener union was unaware of this support, its independence was not compromised.

Consequently, the existing collective agreements remained valid, and most of the certification applications were dismissed as untimely.

The applicant trade union applied for certification to represent employees at a Swiss Chalet restaurant operated by the respondent.

The incumbent trade union, which previously held bargaining rights, advised the Board that it no longer wished to assert those rights and did not oppose the applicant's certification.

The Board considered whether its usual practice of ordering a representation vote in displacement applications should apply when the incumbent abandons its rights.

Finding no labour relations policy requiring a vote in such circumstances, and noting the applicant had established sufficient membership support, the Board exercised its discretion to certify the applicant without a representation vote.

The applicant union applied for certification to displace the incumbent union and requested a pre-hearing representation vote.

The parties agreed on a voting constituency description that differed from the existing collective agreement.

The Board accepted most of the agreed-upon changes as they did not alter the actual composition of the unit, but rejected the addition of the phrase 'persons covered by subsisting collective agreements' because it introduced potential uncertainty.

The Board directed that a pre-hearing representation vote be taken using the modified voting constituency description.

The applicant union applied for certification.

The respondent nursing home argued that Registered Nursing Assistants acting as 'charge nurses' exercised managerial functions and should be excluded from the bargaining unit under section 1(3)(b) of the Labour Relations Act.

The Board reviewed the duties of the charge nurses, which included assigning work, training employees, and reporting on performance.

The Board found that these duties were inherent to their professional skills and did not constitute managerial functions, as they lacked the authority to make effective recommendations regarding wage increases, discipline, or termination.

The Board concluded the charge nurses were employees and certified the union.

The applicant union applied for certification and requested a pre-hearing representation vote for employees of the two named respondents at a specific location.

The respondents argued that the voting constituency should also include employees of a third related company at a different location, and that a hearing must be held before any vote.

The Board rejected the respondents' argument that a hearing was a condition precedent to a pre-hearing vote, noting that the purpose of the procedure is to test representation quickly.

The Board defined the voting constituency to include only the employees of the two named respondents, directed a pre-hearing vote with separate ballot boxes, and ordered the boxes sealed pending a full hearing on the appropriate bargaining unit and related employer issues.