Employment and Labour Law

The Board assessed compensation owed to an employee previously found to have been unlawfully discharged.

The respondent employer argued the employee failed to mitigate his damages by not seeking work in his specific trade as a spring maker.

The Board found the employee acted reasonably in seeking alternative work and attempting to start a business initially, but failed to take reasonable steps to find work in his trade during a subsequent four-month period.

Compensation for lost wages was reduced by the amount the employee likely could have earned during that four-month period, resulting in an award of $11,389.44 plus benefits and interest.

The applicant applied to terminate the respondent union's bargaining rights.

The Board first determined that the application was timely, finding that an early notice to bargain under section 45 of the Labour Relations Act was effective to terminate the collective agreement on its nominal expiry date, despite not complying with the agreement's specific notice provisions.

However, the Board dismissed the application because it was not satisfied that the employee petition was voluntary.

The Board found that the employer's anti-union conduct, including refusing to adhere to the collective agreement, unilaterally introducing benefits, and granting a wage increase immediately prior to the petition, created an atmosphere where employees could not freely express their wishes.

This is a dissenting opinion in an Ontario Labour Relations Board decision regarding an employer's request for a final offer vote under section 34e of the Labour Relations Act.

The dissenting Board Member disagreed with the majority's finding that the employer breached the duty to bargain in good faith under section 14 by requesting the vote.

The dissent emphasized that economic realities and the relationship between the parties can change during a strike, particularly when the strike has the support of a minority of the bargaining unit.

The dissenting member would have denied the union any remedy due to its conduct during the bargaining process.

The applicant hospital applied under section 95(2) of the Labour Relations Act for a determination of whether its Head Nurses were 'employees'.

The respondent union argued the issue was res judicata due to a 1976 Board decision.

The Board noted that while a doctrine analogous to res judicata applies, it does not preclude a fresh application where duties have materially changed.

However, because the parties were bound by a recent collective agreement, the Board limited the appointment of a Labour Relations Officer to inquiring only into changes in duties and responsibilities since the date the collective agreement was entered into.

In a concurring opinion, Board Member C. G. Bourne agreed with the Vice-Chairman's finding that the York County Board of Education's closure of schools constituted a lock-out.

However, Bourne disagreed with the motives ascribed to the Board of Education, stating that the trustees acted responsibly and in all conscience after careful investigation, rather than out of frustration or anger.

The applicant teachers' federation alleged that the respondent school board unlawfully locked out high school teachers when it closed the schools for two days during a work-to-rule campaign.

The Ontario Labour Relations Board found that while the school closure was motivated by collective bargaining considerations and thus constituted a lock-out rather than a purely administrative closure, the lock-out was lawful because the statutory preconditions—an ongoing lawful strike and public consideration of the teachers' final offer—had been met.

The complaint was dismissed.

The applicant union referred a grievance to arbitration alleging the respondent employer violated the provincial collective agreement (Schedule D) by paying lower wage rates under a different roadbuilders' agreement.

The respondent argued it had joined the roadbuilders' association and was thus bound by that agreement instead.

The Board held that an employer cannot unilaterally switch collective agreements by joining a new employers' organization without the written consent of the trade union, pursuant to section 44(4) of the Labour Relations Act.

The Board found the respondent remained bound by Schedule D and granted the union's request for a declaration and related relief.

The union filed an unfair labour practice complaint alleging the employer breached its duty to bargain in good faith under section 14 of the Labour Relations Act.

During a protracted strike, the employer continued to pay non-striking employees the rates from its last pre-strike offer.

However, near the end of the six-month strike period, the employer informed the union it would only sign an agreement if the union agreed to a wage reduction or lump sum payment to reimburse the employer for business losses suffered during the strike.

The Board found that this demand, coupled with the employer's failure to unilaterally reduce wages based on economic conditions, was designed for rejection and penalized employees for exercising their right to strike.

The Board concluded the employer was not negotiating with the intention of concluding a collective agreement and directed it to cease and desist from bargaining in bad faith.

The applicant union applied for certification.

A group of employees filed a statement of desire (petition) opposing the application.

The Board assessed whether the petition was a voluntary expression of the employees' views, given the overlap between those who signed union cards and the petition.

The Board found that the petition was circulated openly on company premises during working hours, with a chain of communication that could have attracted management's attention.

Rumours of a plant shutdown and the involvement of an employee closely related to management further tainted the atmosphere.

The Board concluded the petition was not a voluntary expression of desire, declined to order a representation vote, and granted the certificate based on the union's membership evidence.

The complainant union alleged that the respondent employer committed unfair labour practices by discharging two telephone operators for their union activity and by violating the statutory freeze period.

The employer claimed the discharges were due to the failure of an experimental telephone dispatch system.

The Board found that the employer failed to discharge its reverse onus to prove the terminations were free of anti-union animus, given the employer's knowledge of the employees' union support and previous anti-union conduct.

The Board also held that the unilateral elimination of the telephone operator classification and the alteration of the dispatchers' hours of work during the freeze period violated section 70(2) of the Labour Relations Act.

The employer was ordered to reinstate the grievors with compensation.

The applicant hospital sought a determination under section 55 of the Labour Relations Act regarding the transfer of two chronic care facilities from Victoria Hospital to Parkwood Hospital.

The Board found that a sale of part of a business had occurred.

The Board further held that the existing bargaining rights of the Ontario Nurses' Association for the full-time and part-time nurses at the transferred facilities should be preserved, as the units remained self-contained and there were no compelling reasons to alter the collective bargaining status quo.

In an application for certification, the applicant union filed membership cards, three of which did not indicate that the employees had paid the minimum one dollar initiation fee.

The union sought to adduce oral evidence to establish that the payments were made.

The Ontario Labour Relations Board held that the payment of the initiation fee is a substantive requirement of membership under the Labour Relations Act, not merely a formal or technical defect.

Consequently, under the Board's Rules of Procedure, oral evidence could not be admitted to cure this substantive defect.

The defective cards were discounted, and the matter was listed for a continuation of the hearing.

The applicant unions sought a declaration under section 1(4) of the Labour Relations Act that the respondent construction companies constituted a single employer.

The Board found that while there was no common ownership or corporate interrelationship between the unionized general contractor and the non-unionized subcontractor, there was a high degree of functional interdependence and economic reliance.

The subcontractor performed 85% of its work for the general contractor, relied on it for working capital, equipment, and administrative support, and had no independent public identity.

The Board concluded the entities were under common control and direction, and exercised its discretion to declare them one employer to prevent the erosion of bargaining rights.

The complainant alleged that the respondent trade union breached its duty of fair representation under section 60 of the Labour Relations Act by settling a grievance concerning compulsory overtime rather than taking it to arbitration.

The grievors had been suspended for refusing to work overtime during an annual plant shutdown.

The union processed the grievance, obtained a legal opinion indicating uncertain prospects of success, and ultimately negotiated a settlement that substituted written warnings for the suspensions, provided partial back pay, and secured double time for future shutdown overtime.

The Board dismissed the complaint, finding that the union carefully weighed the merits of the case and the interests of the bargaining unit, and that its decision to settle was not arbitrary, discriminatory, or in bad faith.

The applicant union sought certification for employees at one of the respondent's two plants in Metropolitan Toronto.

Initially, the union sought a single-plant unit while the employer argued for a multi-plant unit.

After a representation vote showed strong support for the union at the larger plant, the parties reversed their positions.

The Board applied the Usarco criteria to assess the community of interest between the two plants.

Finding no functional interdependence, separate hiring and supervision, and different products, the Board concluded there was no sound reason to sweep the smaller plant's employees into the bargaining unit.

A certificate was issued for the single plant.

The applicant and a group of employees applied under section 52 of the Labour Relations Act for a declaration that the respondent trade union was not entitled to represent the employees in the bargaining unit at the time it entered into a voluntary recognition agreement with the employer.

The employer did not appear or file employee lists.

The Board found that the onus of establishing entitlement rested on the parties to the agreement.

Evidence showed that at the time the agreement was signed, there were 20 employees in the bargaining unit, but the union only had support from six employees due to several resignations from membership prior to the agreement's execution.

As the union did not represent a simple majority, the Board granted the application, declaring the union was not entitled to represent the employees, and the voluntary recognition agreement ceased to operate.

The applicant union sought certification for dispatchers and telephone operators employed by a Windsor taxi company.

The employer challenged the Ontario Labour Relations Board's jurisdiction, arguing its business was a federal undertaking because it serviced the Windsor Airport and railway station, and occasionally transported passengers and freight across the border to Detroit.

The Board applied the Eastern Stevedoring and Winner tests, concluding that the employer's services were merely a convenience to federal aviation and rail undertakings, not an integral part of them.

Furthermore, the extra-provincial border crossings constituted only 1-2% of its business and were casual and irregular, meaning the business was in pith and substance a local, provincial undertaking.

Having found jurisdiction, the Board granted interim certification under section 7a of the Labour Relations Act due to the employer's uncontested unfair labour practices.

The applicant, Canadian Union of Public Employees (CUPE), applied for a declaration under section 54 of the Labour Relations Act that it acquired the rights, privileges, and duties of its predecessor, the Staff Association of the Children's Aid Society of Metropolitan Toronto, following a merger or transfer of jurisdiction.

The employer questioned the adequacy of the notice for the meetings where the vote was held.

The Board found that the notice and voting procedures complied with the predecessor's constitution and by-laws, and that reasonable notice of the meeting's contents was provided to the membership.

The Board granted the application and declared CUPE the successor union.

The applicant union applied for certification to represent employees of a private sector employer.

The respondent employer objected on two grounds: that the union's constitution only permitted public sector members, and that membership cards signed on a Sunday were void under the Lord's Day Act.

The Board dismissed both objections, finding that the union had an established practice of admitting private sector employees, and that signing a union membership card does not constitute a business transaction regulated by the Lord's Day Act.

A certificate was issued to the applicant.

The applicant union referred a grievance to the Board under section 112a of the Labour Relations Act, alleging the respondent employer failed to apply the province-wide excavation collective agreement.

At the hearing, the employer raised a preliminary objection, arguing that it was bound by a different 'road builders' agreement and that other employers and unions bound by that agreement were entitled to notice of the proceedings because the Board's interpretation might affect them commercially.

The Board dismissed the preliminary objection, holding that strangers to a collective agreement are not entitled as of right to intervene in a section 112a proceeding, and declined to exercise its discretion to add them, as doing so would needlessly encumber the grievance process.