Employment and Labour Law

The applicant union applied for certification.

The parties agreed on the bargaining unit description but disputed whether five individuals exercised managerial functions and should be excluded under s. 1(3)(b) of the Labour Relations Act.

The parties requested an interim certificate and an adjournment to resolve the dispute during collective bargaining.

The Board determined that it had jurisdiction to issue a final certificate, rather than an interim one, because the dispute over the five individuals' status would not affect the union's right to certification or the description of the bargaining unit.

A final certificate was issued.

During a hearing for an unfair labour practice complaint, the complainant union requested an order directing the respondent employer to produce a salary survey and other documents related to unilateral salary adjustments.

The employer argued the survey was irrelevant and its production would grant the ultimate remedy sought in the complaint.

The Board held it had jurisdiction to order production of documents relevant to the issues, finding the survey's existence and content relevant to the employer's motivation.

The Board ordered production of the survey and documents the employer intended to rely on, noting that the union was bound by an implied undertaking not to use the documents for collateral purposes such as collective bargaining.

The applicant union sought certification to represent employees of the related respondent employers.

During the organizing drive, management held meetings with employees where they strongly expressed anti-union sentiments, suggested forming an employee committee instead, and reminded employees of the terminal date to file opposition.

Following these meetings, an employee circulated a petition (statement of desire) opposing the union.

The Board found that management's statements exceeded the bounds of permissible free speech and constituted undue influence, thereby tainting the voluntariness of the subsequent petition.

As the union demonstrated sufficient membership support, the Board granted interim certification pending the resolution of the status of three specific employees.

The complainants, skilled tradesmen, alleged that their union breached its duty of fair representation under section 68 of the Labour Relations Act and engaged in intimidation under section 70 by refusing to process their grievances regarding the application of departmental versus mill seniority during layoffs.

The Board dismissed the section 70 complaint, finding no intimidation.

However, the Board found that the union president acted arbitrarily and in bad faith by refusing to process the grievances due to personal animosity and by withholding relevant information from the membership.

The Board held that the union breached section 68 and directed the parties to provide further submissions on the appropriate remedy, noting that referring the matter to arbitration might not be appropriate given the union's conflict of interest.

The applicant union sought certification for a bargaining unit consisting of occasional teachers employed in the respondent's six French language secondary schools.

The respondent argued that the unit should include all occasional teachers across all its secondary schools to avoid fragmentation.

The Ontario Labour Relations Board determined that the occasional teachers in the French language schools shared a distinct and definable community of interest, making the proposed subdivision an appropriate bargaining unit.

A Board Officer was appointed to inquire into the employee list to determine the exact composition of the bargaining unit.

The applicant union applied for certification of drivers and walkers engaged in the respondent's messenger service.

The respondent challenged the application on the basis that its labour relations fell under federal jurisdiction, arguing that the messenger service was an integral arm of its cross-Canada courier service.

The Board found that the messenger service operated as an independent local business serving the public at large, and was not so integral to the federal courier undertaking as to fall outside provincial jurisdiction.

The Board concluded that the labour relations of the messenger service fell within provincial jurisdiction.

The applicants, two secretaries employed by the Niagara South Board of Education, applied under section 47 of the Labour Relations Act for an exemption from paying union dues to the Ontario Public Service Employees Union (OPSEU) based on their religious convictions.

They objected to the union's affiliation with the Ontario Federation of Labour's pro-choice resolution on abortion, the union's constitutional defence of the right to strike, and the lack of reference to God in the union's oath.

The Board applied the Wybenga test and found that the applicants' beliefs were sincerely held, religious in nature, and the actual cause of their objection to paying dues.

The Board granted the applications, ordering that the dues be remitted to a mutually agreed charitable organization.

One Board member dissented, arguing that objections to non-collective bargaining issues like abortion resolutions should not justify a total exemption from dues.

The applicant trade union applied for certification.

The parties agreed on the bargaining unit but disputed whether sixteen employees laid off on the morning of the application date should be included in the count.

The employees had reported for work with a reasonable expectation of working but were given termination notices before their shift began.

Applying established Board jurisprudence, the Board held that the employees should be included in the count.

Finding that more than fifty-five percent of the employees in the bargaining unit were members of the applicant, the Board issued a certificate.

The union applied for certification to represent employees of the Elizabeth Fry Society of Ottawa.

The parties disputed the composition of the bargaining unit, specifically regarding Ontario Youth Corps Programme participants, relief workers, students, and contract employees.

The Board found that Youth Corps participants were employees but excluded them from the bargaining units due to their unique terms of employment and lack of community of interest.

The Board applied its standard 7-week rule to determine part-time status for relief workers and its 30/30 rule to determine which employees were in the bargaining unit on the application date.

The Board certified the union on an interim basis for the full-time unit and appointed a Labour Relations Officer to settle the part-time unit list.

The applicant municipality applied to terminate the bargaining rights of the respondent union following a transfer of an undertaking from the Crown.

The union raised a preliminary objection that the application was untimely, having been brought more than 60 days after the transfer.

The Board held that it lacked jurisdiction to extend the strict 60-day statutory time limit under the Successor Rights (Crown Transfers) Act, and that the curative provisions of the Labour Relations Act did not apply to the employer in these circumstances.

The application was dismissed.

The grievor voluntarily terminated his employment, at which time the employer withheld his final wages of $756.96 to set off a $7,060 overpayment of room and board allowance mistakenly paid to him.

The union grieved the withholding of wages.

The Ontario Labour Relations Board held that section 8 of the Employment Standards Act strictly prohibits an employer from unilaterally setting off or deducting amounts from an employee's wages to satisfy a claim, requiring the employer to seek its remedy in court.

The Board directed the employer to pay the withheld wages plus interest.

During a hearing into allegations of unlawful picketing, the complainant called an adverse party as a witness and sought to cross-examine him as of right, relying on Rule 53.07 of the Rules of Civil Procedure.

The Ontario Labour Relations Board declined to adopt the civil rule, holding that it would instead apply the common law discretion to permit leading questions or cross-examination only if the witness demonstrates hostility or an unwillingness to answer.

The Board also ruled that section 9 of the Ontario Evidence Act does not prevent the witness's answers from being used against him in the very proceeding in which he is testifying, as the statutory protection against self-incrimination applies only to independent contemporaneous or subsequent proceedings.

The applicant union applied for certification to represent graduate and registered nurses employed by the respondent hospital on a casual basis.

The respondent objected, arguing that the applicant had previously agreed to exclude these nurses from existing full-time and part-time collective agreements and should negotiate an amendment instead.

The Board rejected the respondent's objections, noting that the union could only compel bargaining for the casual nurses by obtaining bargaining rights under the Labour Relations Act.

Finding that the applicant had the requisite membership support, the Board granted the application and issued a certificate, while noting the parties could voluntarily consolidate the bargaining units in the future.

The applicant union filed an application for certification to displace the intervener union.

The intervener requested that the Board dismiss the application under section 103(2)(i) of the Labour Relations Act because a previous application by the applicant had been dismissed.

The Board noted that the previous application was dismissed due to a technical defect—the failure to file a Form 9 declaration—and that no assessment of employee wishes had occurred.

Balancing the competing interests, the Board declined to impose a bar and dismissed the intervener's motion.

The complainant union alleged that the respondent company bargained in bad faith by refusing to sign a collective agreement based on a May 2 offer that the union purported to accept on October 25, after a lengthy strike.

The union also alleged that the company's discharge and suspension of several employees on October 25 was an unlawful attempt to avoid a collective agreement.

The Ontario Labour Relations Board dismissed the complaint, finding that the May 2 offer had been extinguished by the passage of time and the intervening strike.

The Board also found that the disciplinary actions were a lawful attempt to make the discharges inarbitrable under the anticipated collective agreement, rather than an unlawful attempt to avoid an agreement.

The Minister of Labour referred a question to the Ontario Labour Relations Board under section 107 of the Labour Relations Act regarding his authority to appoint an employer nominee to a board of arbitration under section 44(4).

The arbitration was previously directed by the Board as a remedy for unfair labour practices committed by both the employer and the union, which had resulted in the complainant's termination.

The employer refused to appoint a nominee, arguing that it had applied for judicial review and that the arbitration was not pursuant to the collective agreement.

The Board advised the Minister that the arbitration process contemplated by its remedial order is a process under the collective agreement to which section 44(4) applies, and therefore the Minister has the legal authority to appoint the employer nominee.

The applicant sought certification as a bargaining agent.

As it had not previously been found to be a trade union, the Board held a hearing on this threshold issue.

The evidence showed that while the applicant had drafted and approved a constitution, it had failed to elect officers in accordance with that constitution, nor had it ratified the officers acclaimed prior to the constitution's adoption.

Applying the five-step test from Associated Hebrew Schools of Toronto, the Board found that the failure to have properly elected or authorized officers meant the applicant was not a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

The application for certification was dismissed.

The union filed an unfair labour practice complaint alleging that the employer failed to bargain in good faith and unlawfully locked out employees during first contract negotiations.

The union argued that the employer engaged in surface bargaining and that the lockout, along with the use of temporary replacement workers, was motivated by anti-union animus.

The Ontario Labour Relations Board dismissed the complaint, finding that the employer had engaged in permissible hard bargaining rather than surface bargaining.

The Board concluded that the employer's refusal to agree to a compulsory union membership clause was based on a genuine matter of principle, and that the lockout was lawfully motivated by a desire to control the timing of a work disruption and to pressure the union into modifying its bargaining positions.

The complainant union alleged that Eaton's and Cadillac Fairview committed unfair labour practices by interfering with its campaign to organize employees at the Toronto Eaton Centre.

The union challenged Eaton's no-solicitation and no-distribution rules, as well as Cadillac Fairview's refusal to allow non-employee organizers to distribute literature in the mall outside the store entrances.

The Board held that the Charter of Rights and Freedoms does not apply to private property disputes between citizens.

However, applying the Labour Relations Act, the Board found that Eaton's blanket prohibition on the distribution of union literature during non-working hours, and Cadillac Fairview's prohibition of non-employee organizers in areas where normal public contact was not interfered with, constituted unlawful interference with the employees' right to organize.

The Board ordered Eaton's to cease its blanket prohibition and Cadillac Fairview to permit restricted access.

The respondent employer applied for reconsideration of a previous Board decision, arguing that the individual who signed the voluntary recognition agreement lacked authority to bind the company, and raising issues regarding craft jurisdiction and man-hours.

The employer had failed to attend the original hearing despite receiving notice.

The Board dismissed the application for reconsideration, noting that the employer had the opportunity to raise these issues at the initial hearing and that the evidence sought to be adduced was available at that time.

The Board emphasized the need for finality in its decisions and expressed concern over the six-month delay in bringing the reconsideration request.