Employment and Labour Law

The Ontario Labour Relations Board determined a preliminary issue in a jurisdictional dispute regarding the installation of storm sewers and manholes on private property at a General Motors plant.

The complainant argued the work fell within the industrial, commercial and institutional sector, while the respondents argued it fell within the sewers and watermains sector.

The Board held that the work characteristics of installing sewers on private property are identical to those of installing sewers under public roads or in subdivisions.

Consequently, the Board declared that the work in dispute comes within the sewers and watermains sector of the construction industry.

The applicant, an accredited employers' organization, applied for relief under section 135 of the Labour Relations Act, alleging that the corporate respondents violated section 131 by entering into an agreement with the respondent union.

The Board determined that section 135 only applies to unlawful strikes or lock-outs.

Since the employees had returned to work, there was no ongoing strike.

The Board concluded it lacked jurisdiction under section 135 to remedy an alleged violation of section 131 and dismissed the application, noting the applicant could bring a complaint under section 89.

The applicant sought a declaration terminating the bargaining rights of the respondent union.

The Board assessed whether the petitions signed by employees represented their voluntary wishes.

The Board found that the active involvement of the general manager's wife in the origination and circulation of the petitions would have led employees to reasonably perceive that management had a vested interest in the termination of bargaining rights and would be aware of who signed.

Consequently, the Board concluded the petitions were not voluntary and dismissed the application.

The complainant alleged that her union breached its duty of fair representation under section 68 of the Labour Relations Act by withdrawing her transfer grievance from arbitration.

The union withdrew the grievance after assuming the complainant had rejected a settlement offer, based on information from the employer that she had contacted the university president.

The Board found the union acted arbitrarily by failing to ascertain the complainant's actual decision regarding the settlement before withdrawing the grievance.

The Board ordered the arbitration reinstated and directed the union to retain jointly selected counsel to represent the complainant.

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

The parties jointly requested that the two respondent entities be treated as one employer under subsection 1(4) of the Labour Relations Act.

The Board directed that a pre-hearing representation vote be conducted and ordered that notice of the joint application be given to affected employees, allowing them an opportunity to make representations before the Board grants the single-employer declaration.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that Frank Plastina Investments Ltd. (FPI) and Sherwood Village Homes Inc. (Sherwood) were related employers.

FPI was a concrete and drain contractor bound by a collective agreement with the union, while Sherwood was a residential builder.

Both companies were under the common control and direction of the Plastina family, shared premises, and had a symbiotic business relationship.

The Board found that the entities were engaged in associated or related activities or businesses and declared them to be one employer for the purposes of the Act.

The complainant, a union member and experienced pipeline worker, alleged that the union violated section 69 of the Labour Relations Act by refusing to honour contractors' requests to name-hire him and by restricting name-hire opportunities to favour dispatch from the out-of-work list.

The Ontario Labour Relations Board found no evidence that the union refused any valid name-hire requests for the complainant.

Furthermore, the Board held that the union's policy of limiting name-hires to those requested at the pre-job conference and encouraging employers to use the out-of-work list was a reasonable balancing of competing member interests.

The complaint was dismissed as the union's actions were not arbitrary, discriminatory, or in bad faith.

The applicant union filed four applications for certification.

A threshold issue was whether the applicant was a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

The respondents argued that the applicant was not a trade union because its constitution allowed vessel owners (alleged to be management) to join, and because some members were not employees.

The Board rejected these arguments, holding that the phrase 'organization of employees' does not mean 'organization of employees only', and that the presence of managerial members does not automatically preclude trade union status.

The Board found that the applicant had followed the necessary steps to form a trade union and declared it to be a trade union under the Act.

The union filed an unfair labour practice complaint and a section 63 application alleging a sale of a business after the respondent terminated its property management contract with A.E. LePage and hired the former LePage employees directly to manage the project in-house.

The Board dismissed the unfair labour practice complaint, finding no anti-union animus in the respondent's decision to save management fees and offer enhanced wages to retain experienced staff.

However, the Board granted the section 63 application, concluding that the respondent's acquisition of the management expertise, administrative staff, and operational system constituted a sale of a part of LePage's business, thereby binding the respondent to the existing collective agreement.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 124 of the Labour Relations Act, alleging that the grievor was dismissed when the respondent employer failed to recall him from a layoff.

The respondent raised several preliminary objections, including that the grievor lacked status as an employee, notice requirements were not met, the grievance was untimely, and the collective agreement contained no recall rights.

The Board dismissed all preliminary objections, finding that the grievor's status could not be determined without hearing the merits, the notice provided was sufficient, there were reasonable grounds to extend the time limits, and the grievance disclosed a cause of action with some chance of success.

The matter was directed to proceed on its merits.

The Ontario Labour Relations Board amended its previous decision dated May 15, 1986, by deleting a sentence from paragraph 18 regarding the risk of having the Board determine the dispute on uncontested evidence.

The Registrar was directed to schedule the complaint for a pre-hearing conference.

The complainant was discharged by her employer for alleged misappropriation of company property after automobile parts were found in her car.

The union filed a grievance but withdrew it at the third step without ever asking the complainant to explain her possession of the items found inside the passenger compartment, which had become the employer's primary focus.

The Ontario Labour Relations Board found that the union acted arbitrarily in violation of section 68 of the Labour Relations Act by failing to investigate the complainant's side of the story regarding those items.

The Board ordered the grievance reinstated and submitted to arbitration, with the union to bear the cost of independent counsel for the complainant and any compensation referable to the period of delay caused by its breach.

The applicant employer association filed a grievance under section 124 of the Labour Relations Act challenging the respondent union's unilateral implementation of a '50/50' hiring system.

For many years, employers had been permitted to 'name-hire' any union member without restriction.

The employers argued that the union was estopped from altering this past practice.

The Board dismissed the grievance, finding that the collective agreement designated the union as the sole agent for supplying employees and did not guarantee a right to name-hire.

The Board held that promissory estoppel did not apply because the union had previously interrupted the practice, putting employers on notice, and the employers had unsuccessfully attempted to negotiate a contractual right to name-hire.

The complainant filed a section 89 complaint alleging the union breached its duty of fair representation under section 68 of the Labour Relations Act by withdrawing his discharge grievance without notifying him.

The complaint was filed over three years after the grievance was withdrawn.

The complainant attributed the delay to incorrect advice from his legal counsel, who told him to await the outcome of his criminal proceedings and a similar arbitration involving another employee.

The Board declined to inquire into the complaint, finding that the extreme delay was unjustified and that the respondents, who were not responsible for the delay, would suffer significant prejudice if the matter proceeded.

The employer applied for a declaration that its employees engaged in an unlawful strike by boycotting overtime during collective bargaining, prior to the release of a 'no board' report.

The Ontario Labour Relations Board declared the overtime boycott an unlawful strike under the Labour Relations Act.

The parties resolved the matter without a formal hearing, with union officials agreeing not to condone the activity and to advise employees of its illegality.

The union applied for a declaration that several corporate respondents constituted a single employer under s. 1(4) of the Labour Relations Act, or alternatively, that a sale of a business occurred under s. 63 following a corporate reorganization.

The Board found that the companies were not under common control or direction and did not engage in related activities, dismissing the s. 1(4) application.

However, the Board found that a sale of a business had occurred with respect to the plant employees of Marson Canada Inc., Swingline/Rexel Inc., and Wilson Jones, Division of Acme Seeley Inc. The Board found no sale of a business regarding the office employees of Swingline/Rexel Inc. and Wilson Jones, as they were newly hired or performing different functions, but did find a sale regarding Marson Canada Inc.'s office employees.

The applicant trade union applied for certification for a bargaining unit of construction labourers.

The respondent employer requested a representation vote, arguing that the current workforce of three employees was not representative because it anticipated hiring approximately 25 employees for upcoming contracts.

The Board declined to apply the build-up principle, noting that short-term employment is typical in the construction industry and the Board consistently considers only those at work on the application date.

The Board certified the applicant without a hearing.

In a jurisdictional dispute complaint under section 91 of the Labour Relations Act regarding the installation of site services at a Honda plant project, the Board addressed preliminary issues.

The Board granted intervener status to the Metropolitan Toronto Sewer and Watermain Contractors Association due to its representational connection to the respondent union and its members' performance of similar work in the area.

The Board also determined that it must first resolve whether the disputed work falls within the industrial, commercial, and institutional (ICI) sector under section 150 of the Act before proceeding with the merits of the jurisdictional complaint, and directed that the matter be relisted for that purpose.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging that Ontario Hydro violated the collective agreement by contracting with 3-L Filters Limited for the supply of equipment. 3-L Filters Limited sought standing to intervene in the arbitration proceedings, arguing that its commercial interests and proprietary rights would be directly affected if the union succeeded.

The Ontario Labour Relations Board dismissed the application for standing, holding that a third party not bound by the collective agreement is not entitled to intervene as of right, and that the Board's discretion to permit intervention should only be exercised where special labour relations circumstances exist, which were not present in this case.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employed non-union workers without referral slips.

At the hearing, the respondent argued the applicant should be restricted to the grievance as filed and precluded from raising interpretation issues not explicitly pleaded.

The Board ruled that a grievance need only particularize the factual allegations and reference the relevant collective agreement provisions, and the respondent is not entitled to particulars of the applicant's legal theory.

The matter was adjourned to be heard alongside a related grievance.