Employment and Labour Law

In two applications for union certification, the respondent employer requested that a Labour Relations Officer examine three additional employees for managerial exclusion if the union's challenge to another employee's status was successful.

The Board deferred the examination of the three additional employees until the status of the initially challenged employee was determined.

The Board also addressed the inclusion of certain employees on both the carpenters' and labourers' lists, noting that if the parties agreed an employee was re-classified between the two application dates, they could be included on both lists.

The applicant employer sought a declaration and cease and desist order against the respondent union and its officials for calling an unlawful strike.

The union had directed employees to refuse all overtime assignments, including those within statutory maximums and those covered by an Employment Standards Act permit, in support of a lawful strike at a sister corporation.

The Board found that the concerted refusal of overtime constituted an unlawful strike under the Labour Relations Act.

The Board rejected the union's argument that the Employment Standards Act conferred a right to engage in such concerted activity, holding that the ESA does not override the LRA's prohibition on unlawful strikes.

The applicant hospital applied under section 106(2) of the Labour Relations Act for a determination of whether three medical secretaries were employees within the meaning of the Act, arguing they should be excluded due to their confidential capacity in labour relations matters.

The union argued the status of one secretary was already settled in prior negotiations.

The Board dismissed the application regarding the first secretary, finding no material change in duties since the parties agreed to include the position in the bargaining unit.

For all three secretaries, the Board found their access to confidential board of directors' minutes was too remote to constitute a regular and material involvement in labour relations matters.

The Board concluded they were not employed in a confidential capacity and remained in the bargaining unit.

Two trade unions applied for certification to represent carpenters and construction labourers employed by the respondent in the construction industry.

The Board determined the appropriate bargaining units, including both the industrial, commercial and institutional (ICI) sector province-wide and all other sectors in the relevant geographic areas.

Because the unions challenged the accuracy of the employee lists filed by the respondent, and there was overlap between the lists of carpenters and labourers, the Board appointed a Board Officer to inquire into the composition of the bargaining units and report back before making a final determination on certification.

The applicant union applied for certification for two bargaining units at the respondent hotel.

The Board found that the head housekeeper exercised managerial functions and excluded him from the units.

The respondent argued that the application should be dismissed under section 12 of the Labour Relations Act because the head housekeeper, acting as management, solicited union memberships.

The Board held that section 12 did not apply because the head housekeeper was acting contrary to the employer's interests and employees did not perceive him as acting on behalf of management.

However, due to concerns about threats of job loss and misrepresentations made by the head housekeeper during the organizing campaign, the Board exercised its discretion to order a representation vote.

The applicant union applied for certification to represent a group of employees, including captain-waiters and an assistant maitre d'hotel.

The respondent employer argued these individuals exercised managerial functions and that the union was estopped from representing them due to a prior agreement excluding them from a previous certification.

The Board found that the individuals did not exercise managerial functions under section 1(3)(b) of the Labour Relations Act.

The Board also held that the union was not estopped from applying to represent them, as the prior agreement did not result in an unfair advantage for the union or prejudice to the employer.

The Board determined the appropriate bargaining unit and found the union had sufficient membership support.

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

The union argued the application was untimely because it had given notice to bargain to the successor employer following the sale of the business.

The Board held that under section 55(10) of the Labour Relations Act, a notice to bargain given to a successor employer has the same effect as a certification, meaning no termination application can be made for one year.

The application was dismissed as untimely.

A dissenting member would have found the application timely.

The applicant union applied for certification to represent employees working aboard the respondent's tugs in the Port of Hamilton.

The respondent challenged the Board's jurisdiction, arguing its operations fell under federal jurisdiction pursuant to the British North America Act's provisions on navigation and shipping.

The Board examined the respondent's operations, which included pushing a fuel barge, docking ships, and towing vessels extra-provincially.

The Board concluded that the respondent's tug boat operations were an integral part of or necessarily incidental to federal navigation and shipping undertakings.

Consequently, the Board found that the respondent's labour relations were governed by the Canada Labour Code rather than provincial legislation, and dismissed the application for lack of jurisdiction.

The union applied for certification to represent a unit of vaultmen, messengers, drivers, and guards employed by an armoured car company.

The employer argued that the employees were guards within the meaning of section 11 of the Labour Relations Act, and that the union was ineligible to represent them because it admitted non-guards to membership.

The Board applied the conflict of interest test and found that the employees' duties did not raise a real possibility of a conflict of interest with other employees.

The Board concluded that the employees were not guards within the meaning of section 11 and granted the application for certification.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that three construction companies were carrying on associated or related activities under common control or direction and should be treated as one employer.

The Board found that the companies shared premises, expenses, and administrative services, and that one company provided extensive managerial and supervisory services to the others.

The Board inferred that the arrangement was designed to allow a non-unionized company to bid on projects outside the unionized company's geographic area after province-wide bargaining legislation was enacted.

The Board granted the declaration, finding the entities constituted one employer bound by the provincial collective agreement.

The applicant trade union applied for certification to represent employees of the respondent nursing home.

A group of employees filed petitions opposing the certification.

The Board held a hearing to determine the voluntariness of the petitions.

The Board found that the employee who circulated the petitions was reasonably perceived by other employees as being in greater proximity to managerial authority, and that she had indicated to signatories that loss of employment or reduction of hours could result from failing to sign.

Consequently, the Board found the petitions were not voluntary and did not cast doubt on the union's membership support.

A certificate was issued to the applicant.

The applicant hospital applied under section 95(2) of the Labour Relations Act to determine whether its Head Nurses were 'employees' within the meaning of the Act.

Following an amalgamation with an adjacent hospital, the employer revised the Head Nurses' job descriptions to align with the other hospital's structure, where Head Nurses were excluded from the bargaining unit.

The Board found that significant material changes had occurred in the Head Nurses' duties, including independent authority to grant time off, require overtime, monitor attendance, and participate in hiring and discipline.

The Board concluded that the Head Nurses exercised managerial functions and were no longer 'employees' under section 1(3)(b) of the Act.

The complainant union alleged that the respondent hospital violated the statutory freeze period under the Labour Relations Act and the Hospital Labour Disputes Arbitration Act by announcing a reorganization of its intravenous and outpatient blood collection services.

The reorganization would require nurses who previously worked straight days to rotate between two shifts.

The Board found that the expired collective agreement contained an express management rights clause permitting the hospital to determine work schedules and hours of work.

The Board held that the exercise of this express right during the freeze period did not constitute a violation, as it maintained the collective bargaining status quo.

The complaint was dismissed.

The applicant union applied for certification as the bargaining agent for part-time graduate and research assistants at York University.

The Board had previously ruled in 1975 that these assistants were not employees under the Labour Relations Act.

The applicant argued that circumstances and the Board's approach had changed, citing a recent decision involving Carleton University.

The Board found that the graduate assistantship program at York was primarily a financial aid scheme to assist needy students and attract them to the university, rather than an employment relationship based on the university's dependency on their work.

The Board concluded that the assistants were not employees within the meaning of the Act and dismissed the application.

The applicant union brought an application under section 55 of the Labour Relations Act, alleging that a sale of a business occurred between Vaunclair Purveyors and Vaunclair Meats, and that the latter was bound by the existing collective agreement.

Vaunclair Purveyors had shut down its meat processing operations, and its principals subsequently incorporated Vaunclair Meats, which operated as a distribution house from the same location, serving many of the same customers with some of the same employees and assets.

The Board found that while the new operation was smaller and functioned differently, it constituted a continuation of a severable part of the predecessor's business.

The Board concluded there was a sale of part of the business and that the union's bargaining rights continued.

The applicant union applied for certification as the bargaining agent for part-time employees of the respondent nursing home, having previously applied for certification for full-time employees.

The union requested that membership cards from the full-time application be transferred to the part-time application.

The respondent and objectors argued that cards should only be counted in one application.

The Board held that the cards could be applied to both files in succession, as the seven-week rule for determining part-time status could result in employees moving between units.

The Board also enlarged the time for the applicant to file a Form 8 Declaration concerning the transferred cards.

The union applied for certification of two bargaining units: one for single-car owner-operators and one for drivers operating under the respondent's taxi company.

The Board found that the owner-operators were dependent contractors, and thus employees under the Labour Relations Act, due to their economic dependence on the respondent's financing, dispatch system, and rules.

The Board also determined that the drivers were employees of the respondent, not the owner-operators, because the respondent exercised fundamental control over their hiring, discipline, and daily work.

Finding that the respondent had committed unfair labour practices, the Board granted certification for both units under section 7a of the Act.

The Labourers and the Operating Engineers applied for certification of employees at the respondent's new land fill site in Maple.

The Teamsters intervened, asserting they already held bargaining rights for the site under a pre-existing collective agreement.

The applicants argued the Teamsters had abandoned their rights.

The Board found no abandonment, as the Teamsters had merely agreed to postpone asserting their rights until the site was fully operational.

The Board also dismissed the Labourers' argument that they held bargaining rights under section 1(4) of the Act, noting that section 1(4) is meant to protect, not expand, bargaining rights.

A representation vote was ordered with all three unions on the ballot.

The applicant union sought certification for a bargaining unit of equipment operators in the Regional Municipality of Waterloo.

The parties disputed whether certain off-site employees working in the respondent's pits and plants should be included in the bargaining unit for the purpose of the count under section 106(b) of the Labour Relations Act.

The Board found that the off-site employees were not commonly associated in their work with on-site employees, as there was no evidence of regular interchange between off-site and on-site work.

The Board excluded the off-site employees from the count and, finding that more than 55% of the employees in the bargaining unit were members of the applicant, issued a certificate.

The applicant, an association of graduate students in the chemistry department, applied for certification as a bargaining agent.

The Ontario Labour Relations Board dismissed the application, finding that the applicant failed to establish its status as a trade union under the Labour Relations Act because its constitution was not properly ratified at a general meeting.

The Board also noted in obiter that a bargaining unit restricted to a single university department would be inappropriate due to the risk of fragmentation.