Employment and Labour Law

In an application for certification in the construction industry, the union challenged the inclusion of five individuals on the employer's list of employees.

A labour relations officer was appointed to inquire into the dispute.

The employer failed to call a witness before the officer but sought to call the witness before the Board.

The Board, by majority, allowed the witness to testify.

Based on the evidence, the Board concluded that two of the challenged individuals were construction labourers employed on the application date, while the other three were not.

The Board deferred the determination of the identity of the true employer and the related employer application, directing the matter to be relisted for hearing.

During a hearing for an unfair labour practice complaint, the complainant union subpoenaed a journalist who had written an article about the respondent employer's alleged threat to cancel its animal control contract.

The journalist refused to reveal his sources for the article.

The Ontario Labour Relations Board ruled that the identity of the sources was relevant and admissible, and that no journalistic privilege exists in Ontario to protect a reporter's sources.

When the journalist continued to refuse to answer the question, the Board consented to state a case to the Divisional Court for contempt proceedings.

A concurring decision by Board Member O. Hodges of the Ontario Labour Relations Board, stating his agreement with his colleagues.

The concurrence renders the Board's earlier decision of October 16, 1980, unanimous.

The applicant union applied for certification.

A group of employees filed a petition in opposition, but the Board found it was not voluntary due to perceived management involvement.

However, the respondent employer alleged that union organizers used intimidation to obtain membership cards.

The Board found that a union organizer made an intimidating statement to an employee.

Given the organizer's role in collecting all the cards, the Board ordered a representation vote rather than granting outright certification.

Board Member Archer dissented, finding the intimidation allegation vague and would have certified the union.

Following a representation vote, a majority of professional engineers did not express a wish to be included in bargaining unit #1.

The Board determined that a separate bargaining unit for professional engineers (bargaining unit #2) was appropriate.

However, as the applicant union had the support of not more than forty-five per cent of the employees in bargaining unit #2, the application for certification in respect of that unit was dismissed.

The Board considered how to proceed with consolidated applications for certification and a successor employer declaration after the respondent's key witness became medically unavailable to complete her cross-examination.

The intervener requested that the certification application be terminated or adjourned indefinitely until the witness could testify.

The applicant union argued for the hearing to proceed.

The Board refused to terminate the certification application, finding that the alleged dissolution of the employer was a voluntary act that did not extinguish the union's right to have its application adjudicated as of the application date.

Balancing the prejudice to all parties, the Board concluded that the applicant's interest in avoiding further delay outweighed the evidentiary difficulties caused by the witness's absence, and scheduled peremptory dates for the continuation of the hearing.

The applicant filed an application to terminate the respondent union's bargaining rights.

The union had been certified less than a year prior, but the employees had engaged in a lawful strike.

The applicant argued that the strike triggered the time limits in section 53(3) of the Labour Relations Act, overriding the one-year protection period in section 49(1).

The Board held that section 53(3) cannot reduce the one-year period of protection accorded to a newly certified union.

The application was dismissed as untimely.

The respondent applied for reconsideration of a Board decision that denied an adjournment and found it had illegally terminated four employees.

The respondent argued the adjournment should have been granted due to a death in the owner's family, and that the owner failed to attend the hearing due to a misunderstanding of his solicitor's advice.

The Board found the owner had continued to work despite the bereavement and had intentionally misrepresented facts.

The Board also found the owner had ignored his solicitor's advice to attend the hearing.

The application for reconsideration was dismissed.

The complainant alleged that the respondent unions violated the Labour Relations Act by refusing his union dues, removing him from the out-of-work list, and subsequently filing internal union charges against him.

The Board found that the union officials acted arbitrarily and in bad faith by filing charges after an eight-month delay to remove the complainant's good standing status and eligibility for referral from the hiring hall.

The Board ordered the respondents to restore the complainant's good standing and compensate him for lost earnings opportunities.

The complainant union alleged that the respondent employer failed to comply with a previous Board order directing the parties to bargain in good faith.

During a mediation meeting, the respondent tabled new proposals and insisted they be resolved before any economic issues or the union's prior proposals could be discussed.

The Board found that the respondent's insistence on limiting discussion to its own pre-conditions restricted the rational, informed discussion required by the duty to bargain in good faith.

The Board concluded the respondent failed to comply with the previous order and directed the filing of the determination with the Supreme Court for enforcement.

The Minister of Labour referred a question to the Ontario Labour Relations Board under s. 96(1) of the Labour Relations Act regarding his authority to appoint a person to constitute a Board of Arbitration.

The trade union and the employer were bound by a collective agreement that expired, and the union sought to invoke an interest arbitration provision for the next agreement.

The employer refused to appoint a nominee, and the union filed a grievance alleging a breach of the statutory freeze period under s. 70(1).

The Board held that s. 70(3) allows alleged breaches of the freeze period to be referred to arbitration, and incorporates s. 37(4) which permits the Minister to appoint an arbitrator.

The Board concluded that the Minister has the jurisdiction to appoint a person to constitute a rights arbitration board to rule on the union's interpretation of the preserved provision.

The complainant union filed an unfair labour practice complaint alleging that the respondent union violated the statutory freeze period under section 70 of the Labour Relations Act.

The respondent union had unilaterally issued withdrawal cards to the grievors, who were its representatives and members of a bargaining unit recently certified by the complainant.

The Board found that the respondent altered a right, privilege, or term of employment without consent, as the issuance of withdrawal cards was not demanded by the union's constitution or past practice.

The Board ordered the grievors reinstated into active membership and the withdrawal cards rescinded.

The grievor requested that the Ontario Labour Relations Board reconsider its decision dismissing a complaint that he was discharged for union activities.

The grievor argued that because criminal charges for attempted vandalism—the employer's stated reason for discharge—were dismissed by a provincial court for lack of evidence, the discharge must have been for union activity.

The Board denied the request for reconsideration, explaining that the court and the Board apply different standards of proof and consider evidence for different purposes.

The Board found no new evidence or representations that would warrant reconsidering its finding that the employer did not violate the Labour Relations Act.

One Board member dissented, stating that the dismissal of the criminal charges warranted a reconsideration of the case.

The applicant union grieved a two-week suspension imposed on a truck driver who also served as chief steward.

The employer alleged the grievor deliberately attempted to curtail production by organizing truck convoys, extending breaks, and pressuring other drivers to limit their daily loads.

The Ontario Labour Relations Board found that the grievor's conduct constituted serious interference with the employer's operations and violated the collective agreement.

The Board held that the employer had reasonable cause for discipline and that the two-week suspension was justified, noting that a union steward's leadership position may invite a greater penalty for engaging in conduct that disrupts work.

The grievance was dismissed, with one board member dissenting.

The applicant union referred a grievance to arbitration under section 112a of the Labour Relations Act, alleging the respondent employers failed to employ union members and hire through the union office.

The respondents submitted that the employer bargaining agency and the currently hired employees should receive notice of the proceedings.

The Board found that the employer bargaining agency was an interested party and that the employees were liable to be directly and adversely affected by the arbitration.

The Board directed that notice of the proceedings be given to both the employer bargaining agency and the affected employees.

The applicant union sought certification for a bargaining unit of all employees in N.D.P. Constituency offices in Ontario, naming the Province of Ontario Board of Internal Economy as the employer.

The Board applied the criteria for determining employer status and found that the individual Members of the Legislative Assembly exercise complete direction and control over the employees, including hiring, firing, and setting conditions of employment.

The Board of Internal Economy acts merely as a paymaster allocating funds.

Consequently, the Board concluded that the individual Members, not the Board of Internal Economy, are the employers.

The application for certification was dismissed.

In an application for certification, a dispute arose regarding the eligibility of three individuals to cast ballots in a representation vote.

The Board ruled that an employee who had been temporarily transferred into the bargaining unit but returned to her original unit before the vote was ineligible to vote.

Conversely, an employee who had been absent due to illness for an extended period but maintained an employment relationship and received benefits was deemed eligible to vote.

The Board directed that the eligible ballots be counted.

The applicant applied for certification for a bargaining unit of insulators.

The intervener challenged the applicant's status as a trade union under section 1(1)(n) of the Labour Relations Act.

The Board examined the purported merger between the Christian Trade Unions of Canada and the Christian Labour Association of Canada, finding that the merger was not validly executed according to the requirements set out in Astgen v. Smith.

Furthermore, the applicant local had not properly adopted the new constitution and lacked duly elected officers.

Consequently, the Board found the applicant was not a viable entity or a trade union within the meaning of the Act, and dismissed the application.

The union filed a complaint alleging the employer bargained in bad faith contrary to section 14 of the Labour Relations Act.

The employer had withdrawn from a joint bargaining structure at the last minute, accepted a settlement for its Montreal plant but not its Bramalea plant, and resurrected a previously settled issue regarding manning after a six-month strike.

The Board found no bad faith in these actions, as the employer was entitled to evaluate its economic interests and reappraise its position.

However, the Board found the employer bargained in bad faith with a second local by refusing to negotiate its proposals until a settlement was reached with the first local.

The employer was ordered to meet and bargain in good faith with the second local.

The complainant, on behalf of part-time employees, alleged that the respondent trade union breached its duty of fair representation under section 60 of the Labour Relations Act.

The complaint arose from the union's failure to include a proposal protecting part-time employees from compulsory shift assignments, its acceptance of an employer proposal introducing such assignments, and its conduct during ratification meetings.

The Board found no evidence of arbitrary, discriminatory, or bad faith conduct by the union's negotiating committee.

The committee had weighed the competing interests of full-time and part-time employees, and the ratification meetings provided a reasonable opportunity for employees to discuss the settlement before voting.

The complaint was dismissed.