Employment and Labour Law

The complainant union filed an unfair labour practice complaint alleging that the respondent employer violated the Labour Relations Act by refusing to provide the salaries paid to each named individual in the bargaining unit prior to collective bargaining.

The employer argued that individual employees might not want their salaries disclosed.

The Ontario Labour Relations Board held that the employer's refusal constituted a breach of the duty to make every reasonable effort to conclude a collective agreement under section 15 of the Act, as the union required the information to formulate proposals and administer the collective agreement.

The Board directed the employer to provide the requested salary information.

The applicant union referred a grievance to the Board under section 124 of the Labour Relations Act and subsequently sought to add related employer and sale of business applications under sections 1(4) and 63 by way of letter.

The respondents did not attend the hearing.

The Board adjourned the section 1(4) and section 63 applications, finding that the applicant's failure to file the proper forms meant that the required formal notices had not been given to the respondents or their employees.

The Carpenters' District Council applied to the Board under section 150 of the Labour Relations Act to determine whether two construction projects fell within the industrial, commercial and institutional (ICI) sector or the residential sector.

One project was a mixed-use building for the Hospital for Sick Children, and the other was a building on the campus of the Salvation Army Training Centre.

The Board considered local area practice and the agreement between the Metropolitan Toronto Apartment Builders Association and the Building Trades Council.

The Board concluded that both projects were predominantly residential in character and therefore fell within the residential sector, not the ICI sector.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether the newly created Production Control Co-ordinator position, held by Margaret Campbell, was an 'employee' for the purposes of the Act.

The respondent company argued the position was managerial and confidential.

The Board applied the 'effective recommendation' test and found that Ms. Campbell exercised independent judgment that consistently triggered immediate management responses, including discipline and staff cutbacks.

Consequently, the Board concluded she exercised managerial functions and was not an 'employee' under the Act.

The complainants, tool and die makers, alleged that their union breached its duty of fair representation by withdrawing their grievances regarding the right to bump into millwright positions during a layoff.

The union had processed the grievances to the third step but ultimately withdrew them during collective bargaining negotiations, concluding they would fail at arbitration because the complainants lacked the required provincial millwright certificate.

The Ontario Labour Relations Board dismissed the complaint, finding that the union officials had directed their minds to the merits of the grievances and made a reasoned judgment, and that their actions were not arbitrary, discriminatory, or in bad faith.

The applicant union applied for certification of a tag-end bargaining unit of quality control technicians at the respondent's plant.

The respondent requested a deferral of the application based on a projected build-up of the workforce, and sought to exclude seasonal employees from the unit.

The Board declined to defer the application, finding that the projected build-up was dependent on uncertain sales projections and lacked the requisite degree of certainty.

The Board also refused to exclude seasonal employees, concluding that the quality control technicians did not share the distinct community of interest of seasonal production employees.

Finding that more than 55% of the employees in the unit were members of the applicant, the Board certified the union.

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

At the hearing, the union raised a preliminary issue, arguing the Board lacked jurisdiction to hear the grievance on its merits because it had been settled, and asked the Board to enforce the settlement.

The employer disputed the settlement and argued the Board retained jurisdiction.

After reviewing the authorities presented, the Board refused the union's preliminary motion, advising it could either pursue the original grievance on its merits or withdraw it to file a new grievance alleging failure to comply with the settlement.

The union elected to withdraw the grievance.

The complainant alleged that her union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to recognize her accumulated seniority and recall rights after a layoff.

The union president had advised her that her 'permanent' layoff truncated her seniority rights, relying on a distinction found in the Employment Standards Act rather than the collective agreement.

The Board found that the union acted arbitrarily by failing to direct its mind to the clear language of the collective agreement, which preserved seniority for up to one year on layoff.

The Board ordered the union to process a grievance on the complainant's behalf and directed the employer to waive any timeliness objections.

The applicant union applied for certification to represent the respondent's employees.

Interveners alleged that the membership evidence was obtained by intimidation, coercion, fraud, and misrepresentation.

The Board found that a business representative of the applicant threatened employees with loss of employment if they did not join the union.

As a result, the Board gave no weight to the membership evidence and dismissed the application.

The applicant union applied for certification to represent projectionists employed by the respondent at two theatres in Goderich, Ontario.

The Board found the applicant to be a trade union under the Labour Relations Act.

The respondent argued that part-time employees should form a separate bargaining unit, but the Board applied its policy that part-time employees are normally included in a craft unit.

Finding that more than 55% of the employees in the bargaining unit were members of the applicant, the Board granted the application and ordered a certificate to issue.

The applicant union applied for certification of a tag-end unit of employees not covered by existing collective agreements.

The applicant relied on the strict wording of the incumbent union's collective agreement, which only explicitly excluded 'drivers'.

The respondent employer argued that eight other employees (shippers, receivers, packagers) had historically been excluded by agreement with the incumbent union.

The Board held that an organizing union must take the situation as it finds it, including the actual practices of the employer and incumbent union, rather than relying solely on the text of the collective agreement.

The Board permitted the applicant to amend its proposed bargaining unit but directed a Board officer to inquire into whether the disputed employees shared a community of interest with the drivers.

Board Member Armstrong dissented, arguing that third parties should be able to rely on the clear words of a collective agreement.

The applicant filed a second application to terminate the union's bargaining rights shortly after a previous application was dismissed.

The union requested the Board to exercise its discretion under section 103(2)(i) of the Labour Relations Act to refuse to entertain the new application.

The Board balanced the competing policy objectives of employee free choice and stability in collective bargaining.

Noting that the parties were in the process of negotiating a renewal collective agreement and had not had a reasonable opportunity to conclude one, the Board declined to entertain the second application.

The Board also held that allegations of a breach of the duty of fair representation should be addressed through an unfair labour practice complaint rather than by permitting a successive termination application.

The complainant union alleged that the respondent taxi company breached sections 15 and 43 of the Labour Relations Act during negotiations for a second collective agreement.

The respondent took the position that the owner-operators and drivers in the bargaining unit were not 'employees', despite a prior Board certificate and collective agreement recognizing them as such.

The respondent also refused the union's demand for a mandatory dues check-off provision under section 43, arguing that the dependent contractors did not receive 'wages' from which dues could be deducted.

The Board held that the respondent's refusal to recognize the employees constituted bad faith bargaining under section 15.

The Board further held that section 43 applies to dependent contractors, interpreting 'wages' broadly to include the compensation or reward they receive, and ordered the respondent to cease its refusal to negotiate an appropriate check-off provision.

The complainant union filed an unfair labour practice complaint alleging that the incumbent union breached sections 3 and 70 of the Labour Relations Act by posting a notice on a bulletin board threatening to charge members who supported the complainant's organizing campaign.

The Board dismissed the complaint, finding that the notice did not threaten the employees' continued employment, as section 46(2) of the Act protects employees from discharge if they are expelled from an incumbent union for supporting a rival union.

The threat of expulsion from membership alone did not constitute intimidation or coercion within the meaning of section 70.

The applicant union sought certification for employees of the respondent nursing home.

Following a representation vote, two employees who were on maternity leave objected that they had been omitted from the voters' list and were unable to vote.

The Board held that employees on maternity leave are eligible to vote because their prospects for continued employment are sufficiently certain.

However, the Board declined to set aside the vote, finding that one employee failed to take reasonable steps to inquire about her eligibility prior to the vote, and the other employee's ballot could not have mathematically affected the outcome.

The union was certified for the full-time bargaining unit.

The applicant union referred a grievance to the Board alleging that the employer violated the collective agreement by failing to employ an operating engineer to operate an elevator used for lifting men and materials on a construction site.

The employer argued that the management rights clause gave it the discretion to decide whether to employ an operator.

The Board held that article 2.2 of the collective agreement required the onsite operation of the elevator to be performed by a union member whenever it was used to move men and materials.

The grievance was allowed and the employer was ordered to compensate the union for the losses flowing from the breach.

The complainant union alleged that the respondent employer violated section 24 of the Occupational Health and Safety Act by imposing a three-day suspension on the grievor for refusing to shut down a paper machine.

The grievor claimed he lacked the training to safely perform the shutdown.

The Ontario Labour Relations Board found that the grievor had received the necessary training and that his refusal was actually motivated by a dispute over call-in pay and meal tickets, rather than genuine safety concerns.

The Board concluded that the suspension was a valid disciplinary response to insubordination and dismissed the complaint.

The applicant union filed an application for certification under the construction industry provisions of the Labour Relations Act.

The applicant submitted membership evidence but failed to file a proper Form 80 declaration, instead submitting a custom document that omitted the required assurances regarding the authenticity of the membership documents.

Because the Board relies on documentary membership evidence without cross-examination, it requires these assurances.

Lacking a proper Form 80, the Board refused to give weight to the membership evidence and dismissed the application.

The complainant union brought section 89 complaints alleging two employees were unlawfully discharged.

The respondent employer acknowledged the unlawful terminations but disputed whether the employees adequately mitigated their losses.

The Board found that one employee reasonably mitigated her losses by seeking full-time employment to replace her part-time jobs.

For the second employee, the Board found he acted reasonably in turning down a job offer in another city due to financial constraints, but failed to mitigate his losses when he subsequently quit a part-time job before securing alternate full-time employment.

The applicant union applied for certification of a unit of part-time office and clerical employees at the respondent hospital.

The parties disputed the geographic scope of the bargaining unit.

The respondent sought to restrict the unit to the municipality of Belleville, while the applicant sought a unit without geographic restriction, mirroring the existing full-time unit.

The Board applied its policy of mirroring part-time units with full-time units to avoid a multiplicity of bargaining units.

Finding that more than fifty-five percent of the employees in the unit were members of the applicant, the Board granted the certification.