Employment and Labour Law

The Carpenters' Union referred a grievance to the Board alleging the employer violated the provincial collective agreement by employing non-union carpenters.

Concurrently, a group of employees applied to terminate the union's bargaining rights.

The Board found that employees hired prior to the statutory extension of the union's province-wide bargaining rights were "employees" in the bargaining unit with status to bring a termination application, and were entitled to a reasonable opportunity to join the union to preserve their employment.

The Board further found the termination petition to be voluntary, despite the employer's known opposition to the union, and ordered a representation vote.

The employer was also found in violation of the collective agreement and ordered to cease employing non-union carpenters, subject to the pre-existing employees' opportunity to join the union.

Sixteen employees filed an unfair labour practice complaint against their employer, Dufferin Aggregates, alleging that the employer was attempting to destroy the union by assigning work to another company.

The union declined to join the complaint.

The employer raised a preliminary objection, arguing that the employees lacked status to bring the complaint without the union's support and that the Board should defer to arbitration.

The Ontario Labour Relations Board dismissed the preliminary objection, holding that individual employees have status to bring a complaint under section 66(a) of the Labour Relations Act to protect their individual rights, even without union support.

The Board also declined to defer to arbitration, as the complaint alleged a breach of the Act rather than merely a violation of the collective agreement.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employer violated the provincial collective agreement by employing non-members on a construction project.

The respondent raised a preliminary objection, arguing the matter was res judicata based on a prior Board decision that found the union was estopped from enforcing the agreement on projects bid prior to a certain date.

The union argued the estoppel was removed because it offered to supply members at a lower wage rate, eliminating the employer's detrimental reliance.

The Board held that the grievance involved the same issue decided in the prior proceeding and that the union's attempt to waive the collective agreement wage rates would constitute an arrangement contrary to section 146 of the Act.

The Board declined to arbitrate the grievance.

The respondent employer raised a preliminary objection arguing that the reverse onus provision in section 89(5) of the Labour Relations Act violates the Canadian Charter of Rights and Freedoms, specifically the presumption of innocence and the right not to be compelled as a witness.

The Board dismissed the objection, following its previous jurisprudence that the reverse onus is a matter of evidence and procedure, not a presumption of guilt.

A request for an adjournment to apply to the courts was denied, and the Board proceeded to hear the complaint.

The complainant, a union member, alleged that his union and its business agent violated sections 69 and 70 of the Labour Relations Act by administering the hiring hall in an arbitrary, discriminatory, and bad faith manner, and by engaging in intimidation.

The Ontario Labour Relations Board found overwhelming evidence of nepotism, patronage, and arbitrary job referrals that favored the business agent's family and political allies while penalizing opponents.

The Board upheld the section 69 complaint, ordering extensive remedial measures including the drafting and posting of clear hiring hall rules, the appointment of an independent auditor, and compensation for the complainant's lost wages.

The section 70 complaint regarding intimidation was dismissed for lack of evidence.

The applicant union applied under section 62 of the Labour Relations Act for a declaration that it acquired the rights, privileges, and duties of the predecessor trade union, the Jaeger Employees' Union.

An employee objected, arguing he misunderstood the effect of a motion to amend the union's constitution, and the employer requested a representation vote.

The Board found that the predecessor union's constitutional procedures for merger were properly followed and that there was no evidence of widespread misunderstanding or interference with the members' true wishes.

The Board declined to order a representation vote and granted the requested declaration.

The union filed an unfair labour practice complaint alleging the employer engaged in a pattern of anti-union conduct, including contracting out bargaining unit work and transferring non-union employees to the unionized plant at higher wage rates during the period leading up to a representation vote on the termination of bargaining rights.

The Ontario Labour Relations Board found that the employer's actions, which also included tabling a discriminatory wage offer, violated the Labour Relations Act by undermining the union and interfering with the employees' ability to vote freely.

The Board ordered the employer to cease contracting out, stop discriminatory transfers, table a non-discriminatory wage offer, and directed that a new representation vote be held after three months.

The applicant union applied for certification in the construction industry.

At the hearing, the unrepresented applicant requested an adjournment to retain legal counsel, which the respondent opposed.

The Board noted that the applicant's written membership evidence failed to state the amount of dues paid, and the applicant sought to adduce oral evidence to cure this defect.

The Board refused the adjournment, holding that its Rules of Procedure and established jurisprudence strictly prohibit oral evidence to establish the fact of membership, allowing it only to identify and substantiate written evidence.

As the written evidence was deficient and could not be cured by oral testimony, the Board found no employees were members of the applicant on the application date and dismissed the application.

The applicant union requested reconsideration of a prior Board decision regarding whether a franchise transfer constituted a sale of a business under section 63 of the Labour Relations Act.

The Board denied the request, finding that the applicant presented no substantial and material new evidence or arguments.

The Board clarified that its prior decision found the franchise was terminated, not transferred, and thus did not determine the legal effect of a franchise transfer under section 63.

One Board member dissented.

During a hearing, the applicant sought to prove documents produced under a subpoena duces tecum without calling the person who produced them as a witness, thereby avoiding cross-examination.

The Board initially ruled the documents must be proved by calling the person as a witness.

Upon reconsideration, the Board reviewed the historical and legal distinction between the ad testificandum and duces tecum aspects of a subpoena.

The Board revoked its previous ruling, holding that a person producing documents pursuant to a subpoena duces tecum does not need to be sworn as a witness and is not subject to cross-examination.

The applicant, the son of the effective owner of the employer's business, applied to terminate the respondent union's bargaining rights.

The sole issue was whether the petition circulated by the applicant was voluntary.

The Board found that employees could reasonably perceive the applicant as an arm of management due to his close family ties, his occasional role as acting manager, and his reliance on his father's business practices during discussions with employees.

Consequently, the Board held the petition was not voluntary and dismissed the application.

The applicant trade union applied for certification.

Although the union filed membership cards for 68% of the bargaining unit, a group of employees filed a timely statement in opposition (petition).

The Board held an inquiry into the voluntariness of the petition.

The Board found that the main proponent of the petition had openly established a link between the petition and company management in the minds of employees, creating a reasonable fear that management would learn who signed.

Consequently, the Board gave no weight to the petition and granted outright certification based on the membership evidence.

The applicant, an employers' organization, applied for accreditation as the bargaining agent for employers in the non-destructive testing industry who have a bargaining relationship with the respondent council of trade unions.

The Ontario Labour Relations Board found that the applicant met the statutory requirements to be an employers' organization.

The Board also determined that the requested unit of employers, which included multiple sectors of the construction industry, was appropriate for collective bargaining given the specialized nature of the industry and the existing exemptions from province-wide bargaining.

A Certificate of Accreditation was issued.

The union grieved the employer's refusal to hire a union member referred through the hiring hall to work at nuclear generating stations.

The employer refused to hire the grievor because of his past criminal conviction for attempting to export arms and pending U.S. charges related to smuggling aliens, both allegedly connected to the Irish Republican Army.

The Board held that while the collective agreement did not give the employer an unbridled right to reject hiring hall referrals, the employer retained the right to reject persons it believed to be unreliable or a security risk, provided it acted reasonably, in good faith, and without discrimination.

Given the catastrophic risks associated with nuclear facilities, the employer's refusal to hire the grievor was reasonable.

The grievance was dismissed with respect to the nuclear sites.

The complainant union alleged that the respondent employer bargained in bad faith by failing to disclose its plans to change the role of a home for the aged and construct a new facility.

However, the union learned of these plans months before it signed a memorandum of settlement and a collective agreement.

The employer requested that the bad faith bargaining complaint be struck out.

The Ontario Labour Relations Board declined to hear the complaint, finding that because the union had ample notice of the true state of affairs before concluding the collective agreement, it was not deprived of the opportunity to respond in bargaining.

As the complaint did not disclose a breach of the Act on its face, it was dismissed.

The applicant, a teacher at a Jewish community school, applied for a religious exemption from paying union dues under section 47 of the Labour Relations Act.

She argued that her opposition to the union's collective bargaining activities, which had led to a work stoppage and community dissension, was based on her religious beliefs.

The Ontario Labour Relations Board dismissed the application, finding that while her concerns were sincere, they were not traceable to religious convictions or beliefs, as Judaism does not prohibit trade union activity and she could not identify a religious underpinning for her position.

The applicant union requested the appointment of a Labour Relations Officer under section 106(2) of the Labour Relations Act to investigate whether certain individuals performing alleged bargaining unit work were employees or exercised managerial functions.

The Board declined to appoint an officer at this stage, noting that the dispute might primarily involve the interpretation of the collective agreement rather than statutory employee status.

The Board directed the parties to provide further representations clarifying the nature of their dispute and the duties of the individuals in question.

The union brought a reference under section 82 of the Colleges Collective Bargaining Act concerning the status of six campus supervisors employed by the respondent college.

The employer argued that the supervisors exercised managerial functions and should be excluded from the support staff bargaining unit.

The Board examined the duties of the supervisors, which included security functions, monitoring campus events, and assigning work to three bargaining unit employees.

The Board found that the supervisors did not exercise sufficient authority over the bargaining unit employees to create a conflict of interest, nor did their security functions warrant exclusion under the Act.

The Board concluded that the campus supervisors were employees within the meaning of the Act and properly included in the bargaining unit.

One board member dissented.

During the hearing of an application for certification and related unfair labour practice complaints, the Board ruled on preliminary issues regarding the applicability of the reverse onus provision in section 89(5) of the Labour Relations Act and the scope of reply evidence.

The Board held that section 89(5) applies to allegations of employer misconduct affecting employment, including threats and interrogations, but not to general allegations of management interference that do not affect employment status.

The Board further ruled that the applicant, having elected to proceed first, could not split its case and must adduce all its evidence in chief, subject to a limited right of reply.

The complainant, representing a group of bartenders, alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The complaint arose from the union's negotiation of a first collective agreement that replaced fixed day shifts with rotating shifts, and its subsequent refusal to take grievances regarding this change to arbitration.

The Board dismissed the complaint, finding that the union's bargaining proposals were based on a legitimate desire to eliminate perceived favouritism and were ratified by the majority.

Furthermore, the union's decision not to arbitrate the grievances was reasonably based on legal advice.