Employment and Labour Law

The applicant union filed an application under section 1(4) of the Labour Relations Act seeking a related employer declaration concerning Ethyl Canada, Inc. and its mechanical subcontractor, F.I.R.M. The respondents sought a preliminary ruling to dismiss the application without hearing further evidence, arguing that the application could not succeed due to F.I.R.M.'s pre-existing bargaining rights and the applicant's delay.

The Ontario Labour Relations Board declined to dismiss the application at the preliminary stage, finding that the issues of delay and pre-existing bargaining rights go to the heart of the section 1(4) application and should be determined after the union has had an opportunity to present its full case.

The applicant union applied for certification.

The Board considered whether the applicant, which was not included in the Minister's designation for the employee bargaining agency, could apply under section 144(5) of the Labour Relations Act.

The Board found that the applicant is an affiliated bargaining agent and must apply under section 144(1).

The Board determined the appropriate bargaining unit and directed the matter to be listed for continuation of hearing to deal with an employee petition.

The union applied under section 106(2) of the Labour Relations Act for the appointment of a Board officer to inquire into the employee status of three foremen.

During prior collective bargaining, the union had agreed to a recognition clause excluding foremen, despite initially reserving its right to challenge their status.

The Ontario Labour Relations Board dismissed the application, applying its policy that where parties have settled the employment status of a person by agreement, neither party can unilaterally repudiate that agreement by bringing a section 106(2) application absent a material change in duties.

The applicant employer sought a declaration that a strike continued by the respondent union after the sale of a business was unlawful.

The Board held that under section 63 of the Labour Relations Act, the sale of a business suspends a union's right to strike until the statutory preconditions, including notice to bargain and conciliation, have been exhausted with the successor employer.

However, the Board declined to exercise its discretion to declare the strike unlawful because the employer had taken the position that the sole employee was terminated, creating substantial uncertainty.

The application was dismissed.

The union applied for certification and filed an unfair labour practice complaint, alleging the employer interfered with a representation vote by paying a 10.5% retroactive wage increase to employees one week before the vote.

The union sought certification without a vote under section 8 of the Labour Relations Act.

The Board dismissed the complaint, finding that the employer had decided on and communicated the wage increase before receiving notice of the certification application.

Consequently, the employer was required by the statutory freeze provisions in section 79(2) to implement the increase as planned, and doing so did not constitute a violation of section 64.

The union applied for certification and filed an unfair labour practice complaint alleging the employer discharged three employees for union activity.

The Board determined the appropriate bargaining unit should be restricted to the employer's non-construction winter operations.

The Board found the employer failed to prove the discharges were not tainted by anti-union animus, violating sections 64 and 66 of the Labour Relations Act.

Given the employer's violations, including threatening an employee prior to a pre-hearing vote, the Board concluded the true wishes of employees were unlikely to be ascertained.

Finding the union had adequate membership support, the Board certified the union pursuant to section 8 of the Act and ordered reinstatement with compensation for the discharged employees.

The complainant union filed a complaint regarding a work assignment dispute.

The respondent union argued the Board should defer consideration of the complaint under sections 81(13) and 81(14) of the Labour Relations Act, as the collective agreements required such disputes to be referred to the Impartial Jurisdictional Disputes Board for the Construction Industry.

The Board agreed and postponed its inquiry to allow the matter to be referred to the mutually selected tribunal.

In an application for certification, the employer objected to the union reviewing the employee list, arguing it could be used for future organizing and that employees wished to remain anonymous.

The Board ruled that the union must be given access to the list to verify its accuracy, as the Board relies on it to determine union support.

The Board also ruled that the union could review the list without management present to protect the secrecy of union membership and solicitor-client privilege.

A representation vote was ordered.

The applicant union filed a grievance alleging the respondent employer violated the collective agreement by sub-contracting carpentry work to a non-union employer.

The respondent argued the workers were hired by the hour and some were union members.

The Board found the arrangement was a sub-contract in violation of the agreement and that the employer failed to use the union hiring hall.

The Board awarded compensatory damages to the union for the lost job opportunities, equivalent to the wages and trust fund contributions that would have been paid to union members.

The complainant subcontractor filed a complaint under section 81 of the Labour Relations Act regarding a jurisdictional dispute over caulking work on precast concrete panels.

The respondent Carpenters Union challenged the Board's jurisdiction to entertain the complaint, arguing that its grievance was against the general contractor for violating a subcontracting clause, not a demand for work assignment from the complainant.

The Board found that the general contractor, bound by conflicting provincial agreements, had pressured the complainant to assign the work to the Carpenters.

The Board held this constituted 'requiring' the subcontractor to assign work within the meaning of section 81(1), giving the Board jurisdiction to hear the complaint.

The applicant union sought a declaration that the respondent was a successor employer following the sale of a business and was therefore bound by the existing collective agreement.

The respondent admitted the sale occurred but argued the Board had general discretion under section 55 of the Labour Relations Act to declare it not bound by the agreement.

The Board rejected this argument, finding that section 55 is declaratory in nature and automatically flows bargaining rights through to the successor employer, subject only to specific statutory exceptions.

The Board declared the respondent bound by the collective agreement.

The applicant union filed a grievance alleging the employer violated the collective agreement by paying incorrect benefit and training fund amounts for operating engineers on landscaping work.

The employer argued the collective agreement contained a patent ambiguity regarding the application of the 'nearest influencing representative agreement' (the Evans agreement) to the wage schedules.

The Board found a patent ambiguity existed because applying the Evans agreement classifications to the Operating Engineers Appendix wage schedules produced a meaningless result.

Relying on extrinsic evidence of past practice, the Board concluded the parties intended the Evans agreement to modify the Appendix as set out in a 1980 letter from the employer association.

The grievance was dismissed.

The applicant, a newly-formed employees' association, applied for certification to represent employees of the respondent's mill operation, who were currently represented by the intervener union.

The intervener challenged the applicant's trade union status and the voluntariness of its membership evidence, arguing that an employee involved in organizing the association was perceived as managerial.

The Board found that the applicant met the requirements for trade union status under the Labour Relations Act.

The Board also held that the organizing employee did not exercise managerial functions and would not have been perceived by other employees as acting on behalf of management.

The Board directed the appointment of an officer to settle the list of employees and arrange a representation vote.

The intervener, Labourers' Local 183, requested that the Board reconsider its decision certifying the Christian Labour Association of Canada (CLAC) as the bargaining agent for the respondent's employees.

Local 183 alleged that CLAC obtained its membership evidence with the assistance of the employer, contrary to section 12 of the Labour Relations Act.

The Board found that while the employer had mentioned CLAC to some employees, he did not tell them they had to join the union to work, and CLAC neither sought nor knowingly benefited from management support.

The Board concluded that section 12 did not apply and denied the request for reconsideration.

The applicant union applied for certification but failed to file a duly completed Form 54, Declaration Concerning Membership Documents.

The Ontario Labour Relations Board dismissed the application, noting that without the Form 54 declaration, the Board cannot give any weight to the documentary membership evidence filed.

A group of employees applied to terminate the respondent union's bargaining rights under section 51(2) of the Labour Relations Act.

The union had given notice to bargain but failed to commence bargaining within sixty days.

The union did not appear at the hearing to provide an explanation for its failure to bargain.

The Ontario Labour Relations Board exercised its discretion to terminate the union's bargaining rights without a representation vote.

The applicant trade union, Local 183, applied for certification for a unit of construction labourers.

The Board considered whether to continue its historical policy of distinguishing between the bargaining units granted to Local 183 and Local 506 in the Toronto area, given the new section 131a of the Labour Relations Act.

The Board held that section 131a contains mandatory directives regarding the appropriate bargaining unit, which precludes the Board from continuing the previous distinction or making sectoral determinations as a condition precedent to certification.

The Board found that both locals are entitled to apply under either subsection 1 or 3 of section 131a, and issued certificates to the applicant for the industrial, commercial and institutional sector province-wide, and for all other sectors in the local geographic area.

The Mechanical Contractors Association of Ontario and the Mechanical Contractors Association of Ottawa referred a grievance against Eastern Sheet Metal and Mechanical Contractors under section 112a of the Labour Relations Act, alleging failure to pay required industry fund contributions.

The Board held that it lacked jurisdiction under section 112a to determine a grievance between parties of like interest (an employer bargaining agency and an employer it represents).

However, the Board found that the non-payment of contributions violated section 134(2) of the Act, allowing the Board to grant relief under section 79.

The applicant union filed a new application for certification after withdrawing a previous application due to an irregularity in membership evidence.

The respondent employer argued that the new application was untimely and that the previous irregularity tainted the fresh membership evidence, requesting a representation vote.

The Board found no intention to mislead in the prior application and noted that fresh, untainted membership evidence was filed.

The Board declined to direct a representation vote and granted the certificate.

The applicant, a secondary school teacher, filed a complaint alleging that her union breached its duty of fair representation under section 60 of the Labour Relations Act by refusing to proceed to arbitration with her grievance.

The Ontario Labour Relations Board dismissed the application on preliminary jurisdictional grounds.

The Board held that the Labour Relations Act does not apply to teachers, and the School Boards and Teachers Collective Negotiations Act neither imposes a statutory duty of fair representation nor grants the Board jurisdiction to inquire into such complaints.