Employment and Labour Law

The complainant union alleged that the grievor was discharged from her employment as a waitress at a Swiss Chalet restaurant because of her support for the union, contrary to section 66 of the Labour Relations Act.

The employer contended that the grievor was a probationary employee who was discharged for complaining about cleaning duties and interfering with other employees' work.

The Board found that the employer's evidence regarding the reasons for discharge was contradictory and lacked credibility.

Applying the reverse onus under section 89(5) of the Act, the Board concluded that the employer failed to prove that the discharge was not tainted by anti-union animus.

The Board ordered the grievor reinstated with compensation.

The complainant filed an unfair labour practice complaint under section 89 of the Labour Relations Act.

The respondent brought a preliminary motion requesting the Board defer the matter to arbitration.

Applying the Valdi deferral doctrine, the Board found that the dispute over a payment to the intervener was essentially a contractual issue that could be resolved by an arbitrator.

The Board granted the motion and deferred the complaint to arbitration, retaining jurisdiction in the event the arbitrator failed to deal with the unfair labour practice issues.

The complainant, a discharged employee, alleged that his union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to take his discharge grievance to arbitration.

The discharge arose from a physical altercation in the parking lot involving the complainant, the union plant chairman, and a union steward.

The Board found that the plant chairman, who had instigated the altercation by greasing the complainant's car, presented the case to the union membership without disclosing his own involvement or conflict of interest.

The Board concluded that the union's decision not to arbitrate was tainted by this conflict of interest and animosity, amounting to arbitrary, discriminatory, and bad faith conduct.

The Board ordered the union and employer to arbitrate the grievance forthwith and directed the union to engage independent counsel jointly chosen with the complainant.

The applicant employer sought a cease and desist order against the respondent union and its official for establishing a picket line at a construction site over a jurisdictional dispute.

The applicant argued the picketing was intended to induce an unlawful sympathy strike by other trades.

The respondents claimed the picketing was informational and protected by the freedom of expression guarantee under the Charter.

The Ontario Labour Relations Board found that the picketing was a call to action intended to cause an unlawful strike, which is not protected by the Charter.

The Board issued declarations and directions ordering the respondents to cease and desist from picketing and encouraging an unlawful strike.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding his authority to appoint a conciliation officer.

The union had requested conciliation for a 1984-1985 collective agreement, but the employer objected, arguing that the union failed to give timely notice to bargain under the 1983-1984 agreement, resulting in its automatic renewal.

The Board found that the union's late notice, given months after the agreement's expiry, did not constitute valid notice under section 53(1) of the Labour Relations Act.

Consequently, the collective agreement was automatically renewed, and the Minister lacked the authority to appoint a conciliation officer.

The complainant alleged that her union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to actively participate in or fund her independent legal counsel for a judicial review application brought by her employer.

The employer was seeking to quash a previous Board decision that had found both the employer and the union in breach of the Act.

The Board dismissed the complaint, finding that the union's decision was based on the advice of legal counsel and was not arbitrary, discriminatory, or in bad faith.

The union was not obligated to underwrite the complainant's legal costs for the judicial review.

The applicant union applied for certification to displace an incumbent union.

A group of employees filed a petition opposing certification long after the terminal date, requesting an extension due to alleged lack of information and delay in the proceedings.

The Board refused to extend the terminal date, emphasizing the need for a fixed point in time to ascertain employee wishes and noting that mere passage of time or change of heart does not justify an extension.

Furthermore, because the incumbent union had abandoned its bargaining rights, the Board declined to order a representation vote and granted outright certification based on the applicant's membership evidence.

In a grievance referral to arbitration, the applicant union requested the Board to direct the respondents' principal to comply with a summons to witness.

The respondents demanded particulars of the alleged violations before complying.

The Board held that the grievance against Penka Carpentry Limited was sufficiently particularized, as it alleged all work performed by Penka violated the collective agreement.

However, for Karl Thier Construction Limited, the union was required to particularize claims outside the specific time and location already identified, as it had a prior bargaining relationship with that entity.

The matter was adjourned.

The applicant employer sought to have the Board redefine several existing bargaining units into a single unit under section 63 of the Labour Relations Act following an administrative reorganization of its wholesale operations.

The employer also requested relief under section 91 to reconcile conflicting collective agreements.

The Board dismissed the application, finding that the work of the different operations remained functionally separate and identifiable, meaning no intermingling had occurred to trigger section 63(6).

The Board concluded that the dispute over the application of collective agreements and seniority rights should proceed to arbitration.

The Board was asked to determine whether the construction of the Baker Centre, a non-profit combined nursing home, retirement home, and day-care facility, fell within the industrial, commercial and institutional (ICI) sector or the residential sector of the construction industry.

After hearing extensive evidence on industry practice and the nature of the facility, the Board concluded that the project fell within the ICI sector.

The Board reasoned that the facility is an institution providing a socially beneficial service, with residents conducting daily activities in shared areas under the direction of a management firm, distinguishing it from typical residential construction.

The complainant alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to process his discharge grievance to arbitration and by failing to properly represent him in other matters.

The Board found that the union had considered the merits of the grievance, including the complainant's disciplinary record and the likelihood of success at arbitration, before the membership voted against proceeding.

The Board concluded that the union's decision was not arbitrary, discriminatory, or in bad faith, and dismissed the complaint.

The applicant union sought certification for a bargaining unit of employees.

The parties disputed whether part-time employees (working not more than 24 hours per week) should be excluded from the unit.

The employer argued for exclusion based on a single instance where a full-time employee temporarily worked part-time after returning from maternity leave.

The Board held that this isolated instance did not constitute a history of part-time employment.

Consequently, the Board included part-time employees in the full-time bargaining unit and issued a formal certificate.

The applicant union sought certification for a full-time bargaining unit.

The respondent employer argued that because several employees had received lay-off notices, their cards should be excluded from the membership count, and if support fell below 55%, a representation vote should be ordered.

The Board rejected this 'build-down' argument, finding that the lay-offs affected less than 20% of the workforce, which did not render the remaining complement unrepresentative.

The Board declined to exercise its discretion to order a vote and certified the union.

The applicant union brought an application under sections 63 and 1(4) of the Labour Relations Act alleging a sale of a business and related employer status among the respondents.

At a preliminary hearing, the respondents argued that filing a written statement of facts and certain commercial documents was sufficient to satisfy their evidentiary onus under sections 1(5) and 63(13) of the Act, without producing witnesses for cross-examination.

The Ontario Labour Relations Board rejected this argument, holding that the statutory onus requires respondents to produce witnesses to testify under oath as to the material facts of the transactions and relationships, and to be subject to cross-examination.

The Board directed the matter to be relisted for hearing.

The complainant filed a duty of fair representation complaint against the union 18 months after his discharge, and subsequently added the successor employer, TNT Canada Inc., as a respondent 21 months after the discharge.

TNT brought a preliminary motion to dismiss the complaint against it due to extreme delay.

The Board found that the 21-month delay was extreme and caused significant prejudice to TNT, as it was not the employer at the time of discharge and the relevant management personnel had since left.

As the complainant failed to provide compelling labour relations reasons for the delay, the Board dismissed the claim for relief against TNT and adjourned the remainder of the complaint against the union.

The complainant union filed an unfair labour practice complaint alleging the respondent employer breached its duty to bargain in good faith under section 15 of the Labour Relations Act by refusing to provide basic costing information and a list of bargaining unit employees during negotiations.

The Board found that the union required this information to meaningfully assess the employer's proposal of a 5% total compensation package.

The Board directed the employer to provide the requested information, confirming its earlier decision.

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

Counsel for a group of employees and counsel for the respondent employer requested a hearing prior to the vote, alleging issues with the union's membership evidence, including unreturned cards from a previous dismissed application.

The Board declined to schedule a hearing prior to the vote, holding that issues regarding the adequacy and integrity of membership evidence should be dealt with at a hearing after the pre-hearing vote is conducted, as per the statutory scheme.

The Board directed the taking of a pre-hearing representation vote and ordered the ballot box sealed.

The Ontario Secondary School Teachers' Federation (OSSTF) applied for certification to represent occasional teachers employed by the respondent board of education.

The respondent and the intervener union argued that OSSTF was not a trade union under the Labour Relations Act because its membership included principals and vice-principals who exercised managerial functions.

The Board held that OSSTF is a trade union, finding that the inclusion of managerial members does not disqualify an organization from being a trade union, especially given the statutory inclusion of principals in teacher bargaining units under other legislation.

The Board also established a new test for determining the composition of the bargaining unit for occasional teachers, rejecting the traditional 30/30-day rule in favour of a broader test including those actively at work on the application date or who had worked at least one day in the preceding twelve months.

Finally, the Board directed the employer to provide a list of employee names and addresses to facilitate a fair representation vote.

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

The parties disputed whether eight specific employees shared a community of interest with the driver salesmen and special drivers, and whether four supervisors exercised managerial functions under section 1(3)(b) of the Labour Relations Act.

The Board found that the driver salesmen and special drivers had a distinct community of interest and excluded the eight disputed inside workers from their unit.

The Board also determined that only one of the four supervisors exercised managerial functions and excluded him, while including the other three in the bargaining unit.

The matter was directed to be listed for a hearing to consider the voluntariness of an objectors' petition.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that Karl Thier Construction Limited and Penka Carpentry Limited be treated as one employer.

Karl Thier Construction, bound by a collective agreement with the union, ceased receiving contracts from a major developer due to its union affiliation.

The owner, Karl Thier, subsequently arranged for his uncle to incorporate Penka Carpentry Limited to obtain contracts from the same developer, with Thier managing the operations.

The Board found that the two companies carried on related businesses under common control and direction.

The Board exercised its discretion to declare them a single employer to protect the union's bargaining rights, finding that Penka was formed to circumvent Karl Thier Construction's collective bargaining obligations.