Employment and Labour Law

The complainant union alleged that the respondent employer committed unfair labour practices by refusing to agree to a return-to-work protocol that would displace strike replacements in favour of striking employees, and by subsequently withdrawing its monetary offer.

The employer argued that the reverse onus provision in section 89(5) of the Labour Relations Act violated its equality rights under section 15 of the Charter.

The Board held that section 89(5) does not violate the Charter because the distinction between employers and others is not based on personal characteristics protected by section 15.

On the merits, the Board found that the employer's insistence on retaining strike replacements while recalling striking employees only as vacancies arose was motivated by a desire to discriminate against the strikers for exercising their right to strike, violating sections 64 and 66 of the Act.

Consequently, the employer's bargaining stance also violated the duty to bargain in good faith under section 15.

The Board ordered the employer to table a non-discriminatory return-to-work protocol and compensate the striking employees.

The Ontario Nurses' Association applied for certification of a part-time bargaining unit at the Toronto General Hospital.

The parties agreed on the bargaining unit description but disputed whether casual relief nurses should be included in the count for certification purposes.

The Hospital argued for a broader inclusion based on a recent decision involving occasional teachers, while the union argued for the Board's standard '30/30 rule'.

The Board held that the 30/30 rule should apply, as the hospital industry did not warrant a departure from this established practice.

A certificate was issued to the applicant.

The complainant and several other employees were dismissed from their employment for refusing to become members of the union, as required by a union shop clause in the collective agreement.

The complainant alleged that the union and employer violated the Labour Relations Act by enforcing the clause and failing to provide sufficient particulars of the membership requirements.

The complainant also argued that compulsory union membership violated the Canadian Charter of Rights and Freedoms.

The Ontario Labour Relations Board dismissed the complaint, finding that the employees had reasonable notice and opportunity to join the union but simply refused to do so.

The Board also held that the Charter does not apply to private sector collective agreements.

The Minister of Labour referred a question to the Ontario Labour Relations Board pursuant to section 107 of the Labour Relations Act regarding his authority to appoint a conciliation officer.

The employer and the trade union had signed a memorandum of agreement, but the union argued it was null and void due to a common mistake regarding the calculation of a cost of living allowance (COLA) fold-in.

Both parties had mistakenly assumed the COLA entitlement was 10 cents per hour instead of 21 cents.

The Board held that the doctrine of common mistake does not vitiate a collective agreement where the parties specifically directed their minds to stipulated amounts and agreed to them without fraud or misrepresentation.

The Board concluded that a binding collective agreement was in effect and the Minister had no authority to appoint a conciliation officer.

The complainant union filed an unfair labour practice complaint alleging that the respondent employer violated sections 64 and 66 of the Labour Relations Act by discharging a grievor without first holding a pre-disciplinary meeting with union representation.

The grievor's discharge had already been upheld at arbitration, where the arbitration board found the collective agreement provision regarding pre-disciplinary meetings to be directory only.

The Ontario Labour Relations Board upheld the employer's preliminary objection, finding that the failure to hold a meeting did not constitute a prima facie violation of the statutory right to representation, as the grievor was not confronted by the employer in an imbalance of power and was fully represented during the grievance and arbitration process.

The complaint was dismissed.

The applicant union applied for certification of the respondent's employees.

The intervener union requested reconsideration, arguing it already held bargaining rights due to a related employer finding and that the employees were hired contrary to its collective agreement, meaning they should not be counted as employees under the April Waterproofing principle.

The Board found that although the employees were hired outside the intervener's collective agreement, the employer acted in good faith, unaware of the related employer obligations, and the applicant union innocently organized the employees.

The Board distinguished April Waterproofing and directed a representation vote between the applicant and intervener.

The applicants, a group of employees describing themselves as guards, applied under sections 106(1) and 106(2) of the Labour Relations Act to be excluded from a collective agreement.

The Board dismissed the application without a hearing, finding that an application under section 106(2) cannot be brought by employees when no question as to their status has arisen between the parties to the collective agreement.

Furthermore, the Board declined to reconsider the original certification decision under section 106(1), noting that the certificate was spent and the applicants were bound by the negotiated collective agreement.

The applicant trade union applied for certification under section 8 of the Labour Relations Act.

The parties agreed that the employer contravened the Act such that the true wishes of the employees were not likely to be ascertained.

The Board found that the union had adequate membership support for collective bargaining and granted interim certification for the agreed-upon bargaining unit, pending resolution of challenges to the employee list.

The applicant union applied for certification in the construction industry.

The respondent employer challenged the membership evidence, alleging that one employee did not pay the required one dollar initiation fee.

The Board held a hearing and heard testimony from the employee, union representatives, and the collector.

Despite contradictions in the testimony and minor discrepancies on the membership card regarding the date and the actual recipient of the money, the Board accepted the oral evidence and found that the employee had paid the fee and signed the card.

The Board concluded that the union had the requisite membership support and issued a certificate.

The applicant trade union sought certification for a single bargaining unit comprising all employees of the respondent's grocery store, excluding managers and certain others.

The respondent employer argued that the meat department employees should form a separate bargaining unit due to a distinct community of interest.

The Ontario Labour Relations Board found that the meat department employees and other employees shared the same working conditions and common supervision, and did not possess a distinct and different community of interest.

The Board determined that the single bargaining unit proposed by the applicant was appropriate and directed that a certificate issue.

The applicant, an employee, applied to the Ontario Labour Relations Board to terminate the bargaining rights of the respondent union.

The applicant submitted a document containing signatures of employees who wished to decertify the union.

The document was a photocopy of individual sheets that had been pasted together, with the originals allegedly sent to the union's head office.

The union did not present evidence to contradict this claim.

The Board accepted the document as evidence of the employees' wishes, finding that the signatures collected by the applicant were obtained voluntarily.

The Board ordered a representation vote to determine if the employees wished to continue being represented by the union.

One Board member dissented, arguing that the petition should have been rejected due to its form and the circumstances of its circulation.

The union applied for certification and filed an unfair labour practice complaint alleging that the employer laid off several employees and held a captive audience meeting in response to a union organizing campaign.

The Board found that the employer became aware of the organizing activities and laid off four employees, including the key organizers, motivated at least in part by anti-union animus.

The Board also found that statements made by management at a captive audience meeting constituted unlawful threats and promises.

The Board ordered reinstatement and compensation for the affected employees, a posting and mailing of a notice, and union access to the workplace.

The Board further found that the union had sufficient membership support to be certified without a representation vote.

The applicant union sought to include a warranty clerk and a cashier in the bargaining unit of service and parts department employees.

The respondent employer argued they were office staff and should be excluded.

The Ontario Labour Relations Board examined the duties, supervision, and working conditions of the two employees.

Applying the community of interest criteria, the Board found that their work was primarily clerical and their functional coherence and interdependence lay with the general accounting office rather than the production employees.

Consequently, the Board excluded both employees from the bargaining unit.

The applicant union sought to withdraw its application for certification at the opening of the hearing due to potential defects in membership cards and equivocal employee support.

The respondent employer requested that the Board dismiss the application and impose a ten-month bar on future applications pursuant to section 103(2)(i) of the Labour Relations Act, alleging improprieties in the collection of membership evidence.

The Board declined to conduct an inquiry into the allegations or impose a bar, noting that a bar is not intended as a penalty for improper conduct but rather to restore equilibrium to labour relations.

The application was dismissed without a bar.

The applicant trade union sought a declaration under section 1(4) of the Labour Relations Act that three printing companies should be treated as a single employer.

The original company, Hunter Printing, experienced financial difficulties and eventually ceased operations, laying off its employees.

The owner subsequently commenced operations through two new corporate entities, utilizing the same equipment and performing similar work.

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

The Board exercised its discretion to make a single employer declaration, ensuring the union's bargaining rights continued with respect to the new entities, despite there currently being no employees in the bargaining unit.

The complainant, a teacher, filed an unfair labour practice complaint against the Ontario Secondary School Teachers' Federation alleging violations of the Labour Relations Act.

The Ontario Labour Relations Board dismissed the complaint without a hearing, finding that it lacked jurisdiction because section 2(f) of the Labour Relations Act explicitly excludes teachers, whose employment relations are governed by the School Boards and Teachers Collective Negotiations Act.

The applicant union applied for certification to represent the respondent's part-time employees.

The respondent employer alleged that the union's membership evidence was tainted because rank-and-file employees assisting in the organizing campaign misrepresented the union's two-tiered initiation fee structure, telling employees it would cost $1 to join now but $20 later.

The Board found that the union's fee structure itself was acceptable and that the misstatements were made by rank-and-file employees, not full-time union organizers.

The Board concluded that the misrepresentations did not warrant discounting the membership cards or ordering a representation vote.

A certificate was issued to the applicant.

One Board member dissented, arguing a vote should be ordered due to the misrepresentations.

The applicant union sought a declaration under section 63 of the Labour Relations Act that a sale of a business occurred between Canada Safeway Limited and the respondent.

The respondent had subleased a former Safeway location and purchased some fixtures after Safeway closed the store.

The respondent extensively renovated the premises to open an ethnically-oriented supermarket.

The Board found that the respondent did not acquire Safeway's business, but merely purchased idle assets to expand its own successful, pre-existing business.

The application was dismissed.

The union complained that the employer failed to comply with a previous Board order directing it to provide employees with three additional paid holidays.

The employer had placed employees on a three-day temporary lay-off and subsequently paid them for those days, characterizing it as compliance with the order.

The Board found that the employer's actions reasonably met the minimum requirements of the order.

The Board also granted the employer time to respond to the union's request to reconsider the order to include two employees who had left the company prior to the original decision.

The applicant trade union applied for certification of a bargaining unit of part-time employees and students at the respondent hospital.

The parties agreed on the unit description except for the inclusion of students employed during the school vacation period.

The respondent argued that students lacked a community of interest or, alternatively, that a representation vote should be deferred until the summer when students were employed.

The Board declined to defer the vote based on the build-up principle and granted interim certification for the agreed-upon unit, excluding students pending a final determination of the bargaining unit composition.

The Board issued procedural directions for the exchange of pleadings and documents to resolve the outstanding issue.