Employment and Labour Law

The union requested a hearing to quantify damages from a previous grievance award and to amend the style of cause to add a related company, J.B. Carroll Electric Limited, following a section 1(4) declaration by another panel.

The Board held that amending the style of cause was unnecessary because the section 1(4) declaration already made the two companies one employer for the purposes of the Act, meaning the assets of both were susceptible to legal process.

The Board also determined the appropriate interest rate on the agreed-upon compensation of $42,149.25, rejecting the employer's argument for a fluctuating rate and fixing it at 11% from March 11, 1983.

The complainants alleged the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The union failed to appear at the initial hearing, claiming a misunderstanding about a settlement, but the Board refused to grant a hearing de novo.

On the merits, the Board dismissed the claim that the union acted improperly by renegotiating the collective agreement to fix a drafting error regarding seniority.

However, the Board found a breach of section 68 regarding incorrect advice given by a shop steward about the effect of a transfer on the complainants' seniority rights.

Because the union provided no explanation for the steward's actions, a prima facie breach was established.

The Board ordered the union and employer to restore the complainants' full company seniority.

The applicant union sought declarations under sections 63 and 1(4) of the Labour Relations Act that a sale of a business occurred between Arbis Construction Ltd. and Tony Azar Construction, and that they constituted one employer.

The respondents raised a preliminary objection that the reverse onus provisions in the Act violated section 11 of the Charter.

The Board dismissed the Charter challenge, finding the provisions were merely evidentiary.

On the merits, the Board found that Arbis, an insolvent general contractor, and Azar, a newly formed masonry business, were neither associated or related in their activities nor under common control or direction.

The applications were dismissed.

The complainants, drivers for Dufferin Concrete Products, alleged that their union, Teamsters Local 230, breached its duty of fair representation under section 68 of the Labour Relations Act.

The dispute arose when the employer closed a plant and sought to dovetail the seniority lists of Local 230 and Local 879.

Local 230 initially opposed dovetailing and appealed to the International union.

However, after the International dismissed the appeal and ordered compliance with the Joint Council's decision to dovetail, Local 230 accepted the ruling.

The Board found that Local 230 did not act arbitrarily, discriminatorily, or in bad faith in ultimately accepting the constitutional authority of the International union, and dismissed the complaint.

The applicant union sought to set aside a representation vote, alleging that the intervener union breached the Board's silent period by campaigning in the days immediately preceding the vote.

The Board dismissed the application, finding that the applicant's representative had waived any objection to the regularity of the balloting by signing a Consent and Waiver form prior to the counting of the ballots.

Furthermore, the Board concluded that the isolated technical breach of the silent period did not unfairly influence the outcome of the vote.

A certificate was issued to the intervener.

The applicant union applied for certification of a unit consisting of assistant store managers at two grocery stores.

The respondent employer and intervener argued that the assistant store managers exercised managerial functions and were therefore excluded from the definition of 'employee' under the Labour Relations Act.

The Board noted that assistant store managers had historically been excluded from the existing collective agreement covering other employees.

Finding that the assistant store managers had authority to issue formal discipline, resolve inter-departmental problems, and act as the primary source of relief for the store manager, the Board concluded they exercised managerial functions.

The application for certification was dismissed.

The applicant union requested that the Board file its previous decision ordering the respondent employer to pay wages and vacation pay with the Supreme Court of Ontario, as the employer had failed to comply and was in receivership.

The Board noted its practice of requiring proof of non-compliance, but since the respondent did not reply to the allegation of non-compliance, the Board was satisfied that there was a failure to comply.

The Board ordered the determination to be filed with the Registrar of the Supreme Court of Ontario pursuant to section 89(6) of the Labour Relations Act.

The respondent employer sought reconsideration of an earlier Board decision, alleging that the Board violated the principles of natural justice by holding a 'Full Board' meeting to discuss the case before issuing its decision.

The Board denied the request, explaining that Full Board meetings are an institutionalized practice used to discuss the policy implications of draft decisions without deciding the facts or holding a vote.

The Board concluded that this practice is consistent with the inherent nature of administrative decision-making and complies with the statutory mandate to determine its own procedure.

The applicant union applied under section 106(2) of the Labour Relations Act to determine whether a newly created position, Exhibit Project Co-ordinator, was covered by the collective agreement.

The respondent employer argued the position was only being advertised and had not yet been filled.

The Board dismissed the application as premature, noting that section 106(2) applies to a 'person' rather than a 'position', and requires an actual individual to testify about their ongoing role and authority.

The complainant, the former Business Manager of Local 527, alleged that the respondents interfered with a local union election through intimidation and coercion, contrary to section 70 of the Labour Relations Act.

The complainant relied on a series of prior incidents, including alleged physical threats and irregularities during the ballot counting, to argue that the election results should be set aside.

The Ontario Labour Relations Board found that the Board's jurisdiction over internal union affairs is limited to actual threats of physical or economic harm.

The Board concluded that the evidence did not establish a pattern of conduct amounting to intimidation or coercion, and dismissed the complaint.

The union filed a complaint alleging the employer violated section 43(1) of the Labour Relations Act by failing to deduct union dues for all employees in the bargaining unit.

The parties' first collective agreement only required dues deductions for employees who signed an authorization form.

The employer argued that a request under section 43(1) could only be made during collective bargaining, not during the term of an agreement.

The Board held that section 43(1) can be invoked during the life of a collective agreement and directed the employer to comply with the union's request to deduct and remit regular union dues.

The applicant union referred a grievance to the Board alleging the respondent violated a collective agreement.

The respondent argued it was merely a project manager and the true employer was the non-profit owner of the project.

The Board applied the seven criteria from York Condominium to determine the true employer.

Finding that the respondent hired, supervised, disciplined, and paid the employees, and was perceived by them as the employer, the Board concluded the respondent was the true employer for purposes of the Labour Relations Act, despite the arrangement being structured to access federal wage subsidies.

The applicant employer filed applications for a consent to prosecute and a cease-and-desist direction against the respondent union and several individuals, alleging an unlawful strike arising from picketing at the applicant's premises.

The Ontario Labour Relations Board dismissed the applications, finding that no employees failed to perform their scheduled shifts and therefore no "strike" within the meaning of the Labour Relations Act had occurred.

A dissenting board member would have granted the requested order, arguing that the concerted activity was designed to restrict or limit output by dissuading the public from patronizing the restaurant.

The applicant trade union applied for certification.

The respondent employer challenged the union's membership evidence, alleging that a union organizer engaged in improper conduct by offering to buy an employee's car, find a job for her boyfriend, and accepting a conditional payment of the membership fee.

The Board dismissed the employer's charges, finding that the organizer's conduct did not cross the bounds of acceptable salesmanship into coercion or fundamental misrepresentation, and that the conditional payment was not improper.

The Board consolidated the certification application with a related unfair labour practice complaint to hear evidence regarding a statement in opposition filed by objecting employees.

The employer applied under section 106(2) of the Labour Relations Act for a determination of whether four newly-created positions were 'employees' for the purposes of the Act.

The union argued the positions fell within the scope of the collective agreement.

The Board examined the duties and responsibilities of the Operations Manager, Supply and Services Supervisor, Senior Property Standards Officer and Property Manager, and Operations Technologist.

The Board found that all four individuals exercised managerial functions, including supervising staff, authorizing time off, and making effective recommendations.

Consequently, the Board held that none of the four individuals were 'employees' within the meaning of the Act.

The complainant, a bargaining unit employee, alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The union and employer had a long-standing policy of waiving job posting requirements to place disabled employees in restricted duty jobs, which the complainant argued discriminated against healthy employees.

The Board dismissed the complaint, finding that the union's policy was a reasonable and laudable effort to accommodate disadvantaged individuals and did not constitute invidious discrimination, arbitrariness, or bad faith.

The complainant union alleged that the employer committed an unfair labour practice by discharging its local union president.

The employer requested an adjournment at the hearing, which was denied due to lack of evidence of hardship.

The employer's counsel then withdrew.

The Board heard uncontradicted evidence that the employer had previously refused to recognize the grievor as a shop steward, demanded he give up union activities, and discharged him shortly after he was re-elected as union president.

The Board found the discharge violated the Labour Relations Act, ordered immediate reinstatement with full compensation, and directed the employer to post a notice and cease interfering with the union.

The applicant filed a complaint alleging he was discharged for refusing unsafe work under the Occupational Health and Safety Act.

He experienced allergic reactions when using a grinder.

The Board dismissed the complaint on a preliminary basis, finding the applicant failed to establish a prima facie case.

The work place did not present a general hazard, the applicant's reaction was exceptional, and he failed to pursue his request for a face mask before his termination.

The union alleged the employer violated the Labour Relations Act by refusing to implement a first collective agreement awarded by a board of arbitration.

The employer argued the agreement was a nullity due to the Inflation Restraint Act.

The Board held that while the compensation plan within the agreement was of no effect under the Inflation Restraint Act, the remainder of the collective agreement remained valid and binding.

The Board directed the employer to implement the non-compensation provisions of the agreement.

The complainant union alleged that the respondent employer committed unfair labour practices by discharging nine employees for alleged misconduct during a strike and refusing to arbitrate their dismissals.

The misconduct involved an incident away from the plant where replacement workers were assaulted.

The Board found that some employees were discharged based on a mistaken belief of their involvement or merely for being present, which violated the Labour Relations Act.

The Board ordered the reinstatement of five employees, some with back pay and others without, but upheld the discharges of those who actually participated in the physical assault.