Employment and Labour Law

The applicant trade union applied for a pre-hearing representation vote under section 8 of the Labour Relations Act.

The Board declined to direct the vote and dismissed the application because all the persons the applicant claimed to represent had applied for membership in a trade union other than the applicant.

A concurring opinion suggested that the Board's procedures should be altered to allow an applicant to amend the style of cause immediately upon filing when the membership cards name the parent organization rather than the local union applicant.

The applicant, Cambridge Employees' Association, applied for certification to represent the respondent's employees.

The intervener, another trade union, also applied for certification and argued that the applicant lacked trade union status or was barred from certification under section 12 of the Labour Relations Act due to employer support.

The Board found that the applicant had taken the necessary steps to constitute itself as a trade union.

The Board also found insufficient evidence to support the intervener's claim of employer support, despite the applicant's president having obtained the name of their legal counsel from the respondent's general manager.

The intervener's application was dismissed for lack of sufficient membership evidence, and a certificate was issued to the applicant.

The applicant union referred a grievance to the Board alleging that the grievor was unjustly suspended and discharged by the respondent employer.

The grievor was discharged following two incidents of insubordination and violence towards a general foreman, including pushing the foreman to the floor and throwing a hard hat at him.

The grievor alleged the foreman had provoked him with a racial slur, but the Board rejected this evidence based on credibility findings.

The Board found that the respondent had just cause for discharge given the seriousness of the assault, the grievor's short employment record, and his lack of remorse.

The Board declined to substitute a lesser penalty and dismissed the grievance.

The employer requested a final offer vote under section 34e of the Labour Relations Act during a strike.

A majority of employees voted to accept the offer, but the trade union refused to sign the collective agreement, arguing the vote was merely an opinion poll and that the employer's pre-vote communications, which included a reference to a possible plant closure, constituted unlawful coercion.

The Ontario Labour Relations Board held that a section 34e vote in favour of an offer creates a binding basis for a collective agreement in the usual case.

The Board found the employer's statements were reasonable predictions based on bargaining reality rather than unlawful threats.

The trade union was directed to execute the collective agreement.

The applicant union applied for certification and filed sufficient membership evidence for automatic certification.

A group of employees filed a petition opposing the union.

The Board found that the petition lacked evidence of custody during a period of its circulation and was signed by a foreman.

Consequently, the Board gave no weight to the petition, declined to order a representation vote, and granted the certification.

The applicants sought a declaration terminating the bargaining rights of the respondent trade union under section 49 of the Labour Relations Act.

The application was supported by petitions signed by employees.

The Board found that the petitions were circulated shortly after the employer posted a memorandum questioning employee support for the union's dues check-off request.

Given the circumstances, including the collection of signatures on company premises during working hours and unsolicited management suggestions to consult lawyers, the Board could not be satisfied that the petitions represented a voluntary expression of employee wishes.

The application was dismissed.

The union filed a complaint alleging that the employer violated the statutory freeze under section 70(1) of the Labour Relations Act by discharging an employee without just cause, and violated the Occupational Health and Safety Act by discharging another employee for refusing unsafe work.

The Board dismissed the section 70 complaint, holding that the statutory freeze preserves the employer's right to conduct business as before, which includes the right to discharge employees for normal business reasons not motivated by anti-union sentiment.

The Board also dismissed the health and safety complaint, finding that the employee did not have reasonable grounds to believe the work was unsafe and did not actually refuse the work for safety reasons.

In a dissenting opinion, Board Member C. G. Bourne disagreed with the majority's application of section 1(4) of the Labour Relations Act to find a related employer relationship.

The dissenting member emphasized that the original partnership was dissolved due to financial failure, and the respondent merely managed a new business owned by his wife without transferring any assets, goodwill, or customer lists.

The dissent concluded that section 1(4) was not intended to capture such circumstances and would have dismissed the grievance.

A group of registered nursing assistants (RNAs) applied under section 95(2) of the Labour Relations Act for a determination of their employee status.

The employer and the union had previously agreed that the RNAs were employees covered by the collective agreement.

The Board held that section 95(2) is designed to resolve disputes between the immediate parties to the bargaining relationship (the employer and the union).

It is not available to individual employees to question their status when that status is not a matter of dispute between the employer and the trade union.

The application was dismissed.

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

A two-way vote was held, resulting in a tie, meaning the applicant failed to secure more than fifty percent of the ballots cast.

Following the vote, the applicant sought to challenge the results, arguing that the incumbent union lacked status, that the vote should not have been held, and that some employees misunderstood the voting notices due to language barriers.

The Board dismissed the application, holding that the applicant could not repudiate the vote after having agreed to the arrangements, waived objections to its regularity, and lost.

The Board also found that the statutory notices were adequate and that language difficulties did not justify setting aside the vote.

Ten employees brought a complaint alleging their employer bargained in bad faith contrary to section 14 of the Labour Relations Act by negotiating amendments to a pension plan with their union that affected their individual voluntary contributions.

The employer brought a preliminary motion to dismiss the complaint for lack of standing.

The Board dismissed the complaint, holding that the duty to bargain in good faith is owed exclusively to the trade union as the certified bargaining agent, and individual employees have no standing to bring a section 14 complaint against the employer.

The applicant union sought a declaration under sections 55 and 1(4) of the Labour Relations Act that Brant Erecting and Hoisting and Provincial Steel were a single employer or that a sale of business had occurred.

The key principal of the unionized Brant Erecting, which had become insolvent, established a new non-unionized company, Provincial Steel, through his wife to carry on the same business.

The Board found that the two entities carried on associated or related businesses under common control and direction, despite not operating simultaneously.

The Board granted the section 1(4) declaration, binding Provincial Steel to the collective agreement, and found it unnecessary to decide the section 55 issue.

The applicant union applied for certification to represent employees at Ontario Hydro's nuclear energy facilities, seeking to carve them out of an existing province-wide bargaining unit represented by the intervener.

The applicant requested a pre-hearing representation vote under section 8 of the Labour Relations Act.

The Board refused the request, finding that the proposed bargaining unit was highly complex, uncertain, and a departure from the established province-wide collective bargaining relationship.

The Board concluded that the appropriateness of the bargaining unit must be determined before any representation vote could be reliably conducted.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 112a of the Labour Relations Act, alleging the respondent employer improperly sub-contracted plastering and stucco work.

The respondent argued that the union had abandoned its bargaining rights, as it had not directly employed bricklayers for five or six years.

The Board found that the union had not voluntarily abandoned its rights, noting that the respondent had complied with sub-contracting provisions by using unionized firms and that the employer bargaining agency had continued to include the respondent in provincial agreements.

The Board ruled the respondent was bound by the provincial collective agreement and directed the parties to attempt to resolve the remaining issues.

The complainant alleged that the respondent union breached its duty of fair representation under section 60a of the Labour Relations Act regarding hiring hall referrals.

The union brought preliminary motions to dismiss the complaint for periods when no collective agreement was in effect and for extreme delay.

The Board held that the statutory freeze period under section 70(1) preserved the hiring hall provisions for 14 days following the release of a 'No Board' report, allowing the Board to hear allegations from that period.

The Board also declined to dismiss the older allegations for delay, noting its practice is to consider delay when assessing relief rather than barring the complaint entirely.

During a union certification process, a representation vote was held.

One employee cast a ballot on the day of the vote, despite having given notice that she would terminate her employment the following day.

The employer and a group of objecting employees challenged the vote's outcome, arguing the resigning employee should not have been eligible to vote.

The Ontario Labour Relations Board upheld the vote, finding that the employee met the two-pronged eligibility rule of being employed both on the date the vote was ordered and the date it was taken.

The Board declined to depart from its established voter eligibility rules, noting the need for certainty and finality in the certification process.

The applicant union alleged that a sale of a business occurred under section 55 of the Labour Relations Act when the respondent leased restaurant premises and purchased assets formerly used by Skyline Hotels Ltd. Skyline had surrendered its lease to the landlord, Campeau Corporation, following litigation.

Campeau subsequently leased the premises and sold the assets to the respondent.

The Board found that Skyline transferred surplus assets to Campeau, who then transferred them to the respondent, and that these separate transactions did not constitute a sale of a business.

The application was dismissed.

The Christian Labour Association of Canada applied for certification for a bargaining unit of employees of the Chatham Horticulture Society.

The respondent raised a preliminary objection that the Board lacked jurisdiction because the employees were employed in horticulture by an employer whose primary business is horticulture, falling under the exclusion in section 2(c) of the Labour Relations Act.

The Board found that the primary business of the Society is horticulture and that the employees in question spend the major portion of their time in the preparation, planting, and maintenance of gardens.

The Board concluded that the employees fall within the section 2(c) exclusion and dismissed the application for lack of jurisdiction.

The applicant union applied under section 95(2) of the Labour Relations Act for a determination of the employee status of a newly appointed Research Officer.

The respondent employer argued the employee should be excluded under section 1(3)(b) as she was employed in a confidential capacity in matters relating to labour relations.

The Board found that the employee's involvement in collective bargaining was peripheral and merely incidental to her general duties, as she only gathered publicly available data and had no input into its use or access to confidential bargaining strategy.

The Board concluded the employee was not regularly and materially involved in labour relations matters and therefore was not excluded from the collective bargaining process.

The union applied under section 82 of The Colleges Collective Bargaining Act, 1975 for a determination of whether several persons employed by the college were employees within the meaning of the Act and, if so, in which bargaining unit they belonged.

The Board examined the duties and responsibilities of seven positions.

It found that the Programmer-Analyst, Community Program Co-ordinators, Manager Evening Programs, and Media Specialist were employees in the support staff bargaining unit.

The Board excluded the Student Activities Co-ordinator and the Manager Client Services from the bargaining units by reason of their managerial duties and responsibilities.