Employment and Labour Law

In an application for certification, the interveners argued that certain employees should not be counted in the bargaining unit because they were hired contrary to the existing collective agreement, relying on the April Waterproofing principle.

The Board declined to apply the principle, finding that the interveners had failed to act with reasonable diligence to enforce their bargaining rights after becoming aware of the project's resumption.

The Board directed that the ballots of the eligible employees be counted for bargaining unit #1, and dismissed the application respecting bargaining unit #2.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the respondent, Joe Franze Concrete Ltd., and A.J. Concrete Ltd. constituted one employer.

The Board found that while the two companies were engaged in similar concrete work, A.J.C.'s business activity was negligible and posed no real threat to the union's bargaining rights.

Furthermore, granting the application would impose union representation on J.F.C.'s employees against their unexpressed wishes.

The Board declined to exercise its discretion to treat the companies as one employer and dismissed the application.

The complainant building trade unions alleged a violation of a consent access order by the respondents.

The respondents argued the order was spent.

The Board found a bona fide justification for the unions' continued need for access to the property to persuade employees to join, particularly given a competing certification application by the Steelworkers.

The Board declined to read a temporal limitation into the access order and declared it continued in effect until a vote is held or the certification applications are determined.

The applicant trade union applied for certification.

The employer requested that the geographic scope of the bargaining unit be limited to the City of Cornwall, where the existing plant was located.

The union requested a broader unit encompassing the united counties of Stormont, Dundas and Glengarry, as the employer was constructing two new plants outside the municipal boundaries and intended to relocate there.

The Board held that where a relocation is intended at the time of certification and the new site is within the labour market of the existing site, the bargaining unit should embrace the planned move.

The Board found the broader unit appropriate and, being satisfied that more than 55 percent of the employees were members of the trade union, issued a certificate.

In an application for certification where two competing unions both submitted membership evidence in excess of 55 per cent, the Board reconsidered its initial decision to include a 'no union' option on the representation vote ballot.

The Board concluded that because either union would normally be entitled to outright certification based on their membership support, the true question was which union the employees wanted, not whether they wanted a union at all.

The Board amended its decision to eliminate the 'no union' option, directing that the ballot only offer a choice between the two competing unions.

The applicant employers referred a grievance to the Ontario Labour Relations Board under section 124 of the Labour Relations Act, alleging that the respondent union and its members engaged in an unlawful strike.

The strike was triggered by a work assignment dispute and was instigated by a union job steward.

The Board found that the employees engaged in a concerted refusal to work, constituting an unlawful strike during the term of the collective agreement.

The Board held the union vicariously liable for the strike because it was instigated by its job steward, whose actions are considered union actions.

The Board awarded damages to the employers for costs directly attributable to the strike, including idle equipment and the cost of making up for the schedule delay.

The complainant union and two registered nurses alleged that the respondent nursing home laid off the nurses due to anti-union animus, contrary to sections 64 and 66 of the Labour Relations Act, and that the layoffs violated the statutory freeze under section 13 of the Hospital Labour Disputes Arbitration Act.

The Board found that the layoffs were necessitated by a Ministry directive to transfer extended care residents, reducing the required nursing hours.

The decision on whom to lay off was made by the respondent's solicitor based on seniority, without knowledge of union membership.

The Board concluded there was no anti-union animus and that the employer was permitted to implement layoffs during the freeze period to respond to legitimate business needs, as there was no established pattern for layoffs.

The complaint was dismissed.

The complainant filed a complaint alleging that the respondent employer harassed him and the respondent union breached its duty of fair representation regarding events that occurred between 1974 and 1978.

The complaint was filed in 1982, with a notice of intention to rely on the earlier events served less than 24 hours before the hearing in 1983.

The Ontario Labour Relations Board declined to inquire into the complaint, exercising its discretion under section 89 of the Labour Relations Act, due to the extreme delay of over five years, the lack of a satisfactory explanation for the delay, and the resulting prejudice to the respondents, including the destruction of records and the death of a key witness.

The union applied for certification.

The employer alleged that the union used threats and undue influence to obtain membership evidence from two employees.

The Board found the union's witnesses credible and dismissed the employer's charges, concluding no wrongdoing occurred.

The Board also denied the employer's request for an adjournment, which was sought because the employer's adviser was on a golf holiday, emphasizing the need for expedition in certification proceedings.

A certificate was issued to the union.

One Board Member dissented, finding the allegations of threats credible and would have ordered a vote.

The complainant, a sighted employee, was awarded a lead hand position over a more senior, registered blind employee.

The union filed a grievance on behalf of the blind employee, relying on a collective agreement provision granting preference to registered blind personnel.

The complainant alleged the union breached its duty of fair representation under section 68 of the Labour Relations Act by favouring the blind employee's interests and discriminating against him because he is sighted.

The Ontario Labour Relations Board dismissed the complaint, finding the union acted in good faith based on a reasonable interpretation of the collective agreement.

The Board further held that enforcing a contractual preference for blind persons is akin to a special program under the Human Rights Code and does not constitute prohibited discrimination under the Act.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act.

At the hearing, the respondent failed to produce subpoenaed documents, forcing an adjournment.

The applicant requested that the Board assess 'costs of the day' against the respondent.

The Board reviewed its jurisprudence and concluded that it lacks the statutory authority to award costs as a punitive measure in section 124 proceedings, noting that costs are generally not awarded in arbitration unless explicitly provided for.

The request for costs was denied.

The applicant union brought an application under the Successor Rights (Crown Transfers) Act regarding the purported transfer of a Crown-operated facility to the private sector.

At the hearing, the respondent Crown submitted that the application was premature as no legal entity had yet been created to receive the transfer.

The parties agreed to adjourn the matter sine die until the transaction crystallized.

The applicant also requested the Board to seek a Court order enforcing a subpoena against a witness who failed to attend.

The Board declined, noting that under section 12 of the Statutory Powers Procedure Act, it is generally the responsibility of the party seeking the witness's attendance to pursue enforcement.

The application was adjourned for up to one year.

The applicant employee applied to terminate the respondent union's bargaining rights at the first open period following a difficult strike and first collective agreement.

The union argued the employee petition was not voluntary due to the applicant's perceived proximity to management, the open gathering of signatures at the plant gates, and prior management statements.

The majority of the Board found the petition was a voluntary expression of employee wishes, noting the applicant was not in a supervisory role and the context of the recent strike diminished concerns about secrecy.

A representation vote was ordered.

One Board member dissented, finding the petition was tainted by management involvement and the overall environment.

The complainants, security guards at the University of Toronto, alleged that their union breached section 68 of the Labour Relations Act (duty of fair representation) during collective bargaining.

They claimed the union bargaining committee intentionally misled them about a new requirement for medical examinations and failed to secure a promised provision regarding lieu days.

The Board found that the union representatives acted in good faith and that any failure to mention the medical examination requirement during the ratification meeting was due to honest inadvertence, not intentional misrepresentation.

The Board concluded that the union's conduct, while perhaps unwise in some respects, was not arbitrary, discriminatory, or in bad faith.

The complaint was dismissed.

The applicant, a university professor, sought a religious exemption from the compulsory dues checkoff provisions in the collective agreement between the university and the faculty association under section 47 of the Labour Relations Act.

He argued that his non-conformist Protestant Christian beliefs precluded him from supporting the adversarial nature of a trade union.

The Ontario Labour Relations Board dismissed the application, finding that while the applicant held sincere religious beliefs, his opposition to the union was actually grounded in his legal analysis of the York University Act and his belief that faculty members are 'academic managers', rather than being caused by his religious convictions.

The complainant alleged that the union breached its duty of fair representation under section 68 of the Act.

The union and employer had agreed that an error was made in interpreting the collective agreement regarding a job posting during a layoff, resulting in the complainant losing her position and returning to the status quo.

The Board found that the union acted reasonably to correct a mistaken interpretation of the collective agreement and did not act arbitrarily, discriminatorily, or in bad faith.

The complaint was dismissed.

The applicant employer sought a declaration terminating the respondent union's bargaining rights under section 59(2) of the Act, alleging the union failed to commence bargaining within sixty days of giving notice.

The Board found that while negotiations were delayed due to employee layoffs and scheduling difficulties, the union had not abandoned its bargaining rights and was actively preparing proposals.

The Board held that section 59 is not intended to allow employers to trigger representation votes simply because sixty days have elapsed, especially when employees had their own opportunity to file a representation application.

The application was dismissed.

The Labourers' International Union of North America, Local 506 requested that the Ontario Labour Relations Board reconsider its decisions certifying the Operative Plasterers' and Cement Masons' International Association, Local 172 and dismissing Local 506's subsequent application for certification.

Local 506 argued that the Board committed a jurisdictional error and denied natural justice by refusing to treat its application as having been made on the same date as Local 172's application, which would have resulted in a representation vote.

The Board dismissed the request for reconsideration, finding that it had properly exercised its discretion under the Labour Relations Act and its Rules of Procedure, and that no employees had been denied the right to be heard.

The complainant, a casual employee, alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act by negotiating a collective agreement provision that limited the employment of casual employees to two periods.

The union argued the provision was necessary to prevent the erosion of the permanent bargaining unit and to force the employer to make casual employees permanent.

The Ontario Labour Relations Board dismissed the complaint, finding that the union had objective justification for its actions and that the ratification process was fair, with casual employees receiving full notice and opportunity to participate.

The applicant union applied for certification and requested a pre-hearing representation vote.

The parties agreed to two bargaining units for bus drivers, separating full-time from part-time and student employees.

Although the Board generally avoids restrictive bargaining unit descriptions confined to specific classifications, it accepted the agreement in this case due to the employer's unique operations, previous voluntary recognition of other units, and reliance on a prior Board decision.

The Board directed that pre-hearing representation votes be taken for both constituencies.