Employment and Labour Law

The complainants brought a section 89 complaint alleging the union violated section 68 of the Labour Relations Act by arbitrarily or in bad faith failing to pursue a section 15 failure to bargain complaint against the employer.

The complainants sought an order for the production of documents from the employer to show that a prima facie section 15 case existed.

The Board denied the request, holding that the merits of the unpursued section 15 case, based on documents unknown to the union at the time, were irrelevant to assessing the union's state of mind and conduct when it decided not to proceed.

The complainant, a union member, alleged under section 85(2) of the Labour Relations Act that the audited financial statements provided by the respondent union were inadequate because they lacked a detailed breakdown of certain expenditures.

The Board found that the financial statements were prepared by a reputable accounting firm in accordance with generally accepted accounting principles.

The lack of detail was due to inadequate documentation in the union's own financial records, which prevented the auditors from verifying specific expenditures.

The Board concluded that the financial statements themselves were not inadequate within the meaning of the Act and dismissed the complaint.

The applicant union sought certification for a bargaining unit of the respondent's employees.

The issue before the Board was whether four control room operators were 'guards' under section 12 of the Labour Relations Act and thus excluded from the unit.

Applying the conflict of interest test, the Board found that the operators' duties, which included monitoring other employees and reporting security incidents, created a real possibility of a conflict of interest.

The Board concluded the operators were guards, excluded them from the applicant's unit, and issued a final certificate for the remaining employees.

The applicant employer applied under section 59(2) of the Labour Relations Act to terminate the respondent union's bargaining rights.

The union had given notice to bargain in February 1983 but failed to commence bargaining or demonstrate any continued interest in its bargaining rights.

The bargaining unit had no employees since the plant's boiler system was automated in March 1982.

The union did not reply to the application and failed to appear at the hearing.

The Ontario Labour Relations Board exercised its discretion to terminate the union's bargaining rights without a representation vote.

During applications for certification of limousine drivers, a dispute arose regarding the composition of the bargaining unit and the employment status of the drivers (whether they were employees, dependent contractors, or independent contractors).

The applicant union requested to review and copy the employee lists provided by the respondents.

The respondents objected, arguing the lists should remain confidential.

The Ontario Labour Relations Board held that the union is entitled to review and copy the employee lists to meaningfully participate in the hearing and address the complex issues regarding the bargaining unit's composition.

A dissenting board member argued the lists should only be examined in the presence of a Labour Relations Officer to prevent their use for organizing purposes.

The applicant union applied for certification.

Although the union filed membership evidence exceeding the 55 per cent threshold required for automatic certification, a timely statement in opposition (petition) was filed by employees.

The Board inquired into the origination and circulation of the petition to determine if it was voluntary.

Despite some contradictions in the testimony of the employee representatives and concerns about their prior roles on an employee committee, the majority of the Board found no evidence of management interference or that employees would perceive the petition as a management initiative.

The Board accepted the petition as voluntary and directed a representation vote.

One Board member dissented, finding the petitioners' testimony contradictory and concluding the petition did not reflect the true wishes of the employees.

The applicant union applied for certification.

The respondent employer alleged irregularities in the union's membership evidence, pointing to a letter sent by the union to employees asking them to confirm their membership and payment of the $1.00 fee.

The employer argued this raised a suspicion about the evidence and requested a representation vote.

The Board held that the letter was consistent with the union taking extra precautions regarding the accuracy of its membership evidence and did not raise a suspicion.

The Board accepted the membership evidence and granted certification.

One Board member dissented, arguing a vote should have been ordered.

The applicant union sought a declaration that there had been a sale of a business from Candesco to Interspace and ECI, or alternatively, that the three entities constituted one employer under the Labour Relations Act.

Candesco, a unionized interior general contractor, went into receivership.

Its former principals started Interspace, a consulting and contract management business, and ECI, a unionized carpentry installation company.

The Board dismissed the sale of business application, finding no transfer of assets, employees, or goodwill.

The Board also dismissed the related employer application, concluding that Interspace and ECI were engaged in different businesses and were not carrying on associated or related activities with Candesco.

The union brought applications under sections 1(4), 63, and 89 of the Labour Relations Act challenging the bona fides of Caressant Care's contracting out of dietary and housekeeping services to Versa Services at a new nursing home.

The Board found the arrangement to be a genuine, arm's-length contracting out where Versa Services assumed true control and responsibility for the selection, training, and supervision of the employees.

As the employer relinquished control over the performance of the work and employment relations, the Board dismissed the applications and complaint.

The complainant, a registered nurse, voluntarily resigned from her employment to take a new position, which was subsequently withdrawn due to a negative reference letter from her former employer.

The respondent union gratuitously grieved the reference letter and the employer's refusal to rehire her, but was unsuccessful at arbitration.

The complainant filed a complaint alleging the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The Ontario Labour Relations Board dismissed the complaint, holding that the union's duty of fair representation extends only to matters within its exclusive bargaining rights, and does not cover post-resignation reference letters or refusals to rehire.

The applicant union sought to withdraw its application for certification prior to a meeting with a Labour Relations Officer, having realized it lacked the requisite 35% membership support for a pre-hearing representation vote.

The respondent employer objected to the withdrawal and requested the dismissal of the application with a 10-month bar on future applications.

The Board noted that this was the third unsuccessful application within six months, which had kept the employer bound by statutory freeze provisions and caused unrest among employees.

The Board exercised its discretion to impose a 4-month bar on subsequent applications.

The applicant sought an exemption from the union security provisions of a first collective agreement on the grounds of religious conviction or belief under section 47 of the Labour Relations Act.

The applicant, a Seventh Day Adventist, testified that his religious beliefs prevented him from joining or financially supporting a trade union.

Despite having previously paid union dues at another employer, the Board accepted his explanation that his religious convictions had since re-awakened.

The majority of the Board found the applicant's beliefs to be sincerely held and granted the exemption, directing that an amount equal to union dues be remitted to a mutually agreed charitable organization.

One Board member dissented, questioning the sincerity of the applicant's beliefs.

The Ontario Labour Relations Board considered applications arising from the franchising of former Dominion stores to Mr. Grocer franchisees.

The union sought a related employer declaration under s. 1(4) of the Labour Relations Act, arguing that Dominion, its subsidiary Willett Foods, and the franchisee Penmarkay Foods were under common control and direction.

Penmarkay sought to terminate the union's bargaining rights under s. 63(5), claiming a substantial change in the business.

The Board dismissed the s. 63(5) application, finding no fundamental change in the work performed.

The Board granted the s. 1(4) declaration, finding that Willett exercised real economic control over Penmarkay through the franchise agreement, which dictated margins, rent, and other costs, effectively controlling labour relations.

The declaration preserved the consolidated bargaining structure.

The applicant union filed applications under sections 1(4) and 63 of the Labour Relations Act, seeking to bind the respondent employer's new fabrication shop to an existing collective agreement.

The union argued that the employer's acquisition of a lease and equipment from a defunct company constituted a sale of a business.

The Ontario Labour Relations Board dismissed the section 63 application, finding that the new operation was primarily a continuation of the employer's previous non-union shop rather than an acquisition of the defunct company's business.

However, the Board granted the section 1(4) application, declaring the various corporate entities operating the shops to be a single employer, thereby binding the new shop to the bargaining rights the union had recently acquired for the previous shop.

The applicant hospital applied under section 106(2) of the Labour Relations Act for a determination of whether 'nurse clinicians' exercise managerial functions under section 1(3)(b) and should be excluded from the bargaining unit.

The Board reviewed the duties of nurse clinicians, which primarily involved instruction, orientation, and professional evaluation, and concluded that these functions were not managerial in character.

The Board held that the nurse clinicians are employees within the meaning of the Act and are not excluded from collective bargaining.

The applicant union sought certification for full-time and part-time bargaining units at the respondent's retail store.

The employer and union agreed on the bargaining unit descriptions.

A group of employee objectors, representing commission salesmen, argued they should be excluded from the unit because they did not share a community of interest and did not wish to be represented by a union, citing the Charter of Rights freedom of association.

The Board held that excluding the salesmen would cause undue fragmentation and that the Charter did not require altering the appropriate bargaining unit.

The Board also dismissed unproven allegations of union misconduct during the organizing campaign.

As the union demonstrated membership support of over 55%, the Board granted certification without a vote.

The applicant union sought to terminate the bargaining rights of the incumbent union and apply for certification to represent employees at food-service outlets at Pearson International Airport.

The incumbent union had entered into voluntary recognition agreements with a new concession operator, which were ratified by the employees.

The applicant argued these agreements should be set aside under section 60(1) and section 46(4) of the Labour Relations Act.

The Board dismissed the applications, finding that the employees had freely ratified the agreements and that the incumbent union had established it represented a majority of the employees at the time the agreements were entered into.

The applicant union sought to terminate the bargaining rights of the incumbent union, Local 1000A, and to certify itself as the bargaining agent for employees of a food-service contractor at Pearson International Airport.

The incumbent union had negotiated a new collective agreement with the successor employer, York County Foods, which was ratified by the employees.

The applicant argued the agreement should be set aside under section 60(1) of the Labour Relations Act because it contained a compulsory membership clause and the union had not established majority support.

The Board dismissed the applications, finding that the incumbent union had fairly established its majority support and that the employees had freely ratified the agreement.

The applicant union sought certification but erroneously included managerial supervisors in its proposed bargaining unit description.

Relying on this inclusion, two supervisors organized a petition opposing the union.

At the hearing, the union amended its description to exclude the supervisors, rendering their petition invalid as a voluntary expression of employee wishes due to managerial taint.

Because the Board's original notice had explicitly invited the supervisors to respond based on the union's drafting error, the Board ordered the application to be re-posted in its amended form with a new terminal date to allow employees a fair opportunity to respond.

The union filed an unfair labour practice complaint and a related employer application after Kennedy Lodge, a nursing home, announced it would contract out the work of its unionized nurse's aides to Medox, an outside agency, resulting in the termination of approximately 92 bargaining unit employees.

Kennedy Lodge cited severe financial difficulties and the need to reduce wage costs as the reasons for the decision.

The Ontario Labour Relations Board found that Kennedy Lodge would retain fundamental control over the nursing care provided by the aides, meaning Kennedy Lodge would remain the true employer of the aides supplied by Medox.

Alternatively, the Board found that Kennedy Lodge and Medox were related employers under section 1(4) of the Labour Relations Act.

The Board concluded that the arrangement was not a valid contracting out under the collective agreement and that replacing bargaining unit employees with non-union personnel to avoid collective bargaining obligations violated sections 50, 64, and 66 of the Act.

The Board issued declarations binding Kennedy Lodge and Medox to the collective agreement.

A dissenting member would have found the subcontracting valid and dismissed the complaints.