Employment and Labour Law

The complainants, former warehouse employees of Dominion Stores, alleged that their union breached its duty of fair representation (s. 68) and violated the successor rights provisions (s. 63) of the Labour Relations Act when it agreed to a proposal by A & P. A & P had purchased Dominion stores and the warehouse operation, but insisted on integrating the warehouse under the A & P collective agreement, effectively endtailing the Dominion employees' seniority.

The union accepted the proposal without a ratification vote, believing it was the only way to save 250 jobs.

The Board found that the union did not act arbitrarily, discriminatorily, or in bad faith, as its assessment of the situation was reasonable and it faced a difficult decision balancing competing interests.

The Board also exercised its discretion under s. 63(6) to declare that A & P was no longer bound by the Dominion collective agreement due to the intermingling of employees.

The complaints were dismissed.

The complainant trade union alleged that the employer committed unfair labour practices during collective bargaining by refusing to disclose a salary survey, refusing to provide particulars of existing salaries and proposed adjustments, communicating directly with employees to disparage the union, and unilaterally implementing salary adjustments during the statutory freeze period.

The Ontario Labour Relations Board found that the employer violated sections 15, 64, 67, and 79 of the Labour Relations Act.

The Board ordered the employer to cease and desist, bargain in good faith, produce the salary survey, compensate the union and employees for losses, and post a notice of its violations.

The applicant union referred a construction industry grievance to the Board under section 124 of the Labour Relations Act.

The United Brotherhood of Carpenters and Joiners of America, Local 27 sought to intervene in the proceedings, arguing it had a long-standing bargaining relationship with the respondent and could offer insight into the respondent's construction activities.

The Board denied standing, finding that Local 27 was a stranger to the provincial agreement being grieved and had no legal right to participate.

The Board declined to exercise its discretion to grant standing, noting that doing so based on the precedential value of the decision would needlessly complicate proceedings.

During a certification hearing, the applicant union sought to cross-examine the representative of the objecting employees about his duties and responsibilities to challenge the voluntariness of a statement of desire.

The respondent objected, arguing the parties had already agreed the representative was an employee in the bargaining unit.

The Board overruled the objection, holding that while such an agreement creates a rebuttable presumption that the employee does not exercise managerial functions, it does not preclude evidence regarding how other employees perceived the representative's duties and how that perception affected the voluntariness of their signatures.

The applicant union filed an application for certification in the construction industry using Form 75, but requested a pre-hearing representation vote, which normally requires Form 1 under section 90 of the Board's Rules of Procedure.

The Board applied section 84 of the Rules, which states that no proceeding is invalid by reason of a defect in form, and decided to process the application as if it had been made in the proper form.

The Board appointed a Labour Relations Officer to confer with the parties, examine records, and make arrangements for a potential vote.

The applicant union sought a declaration that there had been a sale of a business or that the respondents were one employer under the Labour Relations Act.

As a preliminary issue, the Board considered whether the union held bargaining rights for ironworkers employed by the respondent Hayman, which would bind Hayman to the current provincial agreement.

The Board found that the union's bargaining rights, if any, existed prior to the application for accreditation by the employers' association.

Since Hayman was not named in the certificate of accreditation and the union did not acquire bargaining rights subsequent to the application date, Hayman was not bound to the provincial agreement by virtue of the certificate.

The applicants sought a declaration that A & P was a successor employer to New Dominion Stores Inc. following a corporate reorganization, and that an intermingling of employees had occurred, justifying the termination of Local 206's bargaining rights or a representation vote.

The Board found that a sale of a business had occurred and A & P was bound by the collective agreement with Local 206.

However, the Board found no intermingling of employees and declined to order a representation vote.

To resolve the conflict between the provincial agreement and Local 206's agreement, the Board amended both agreements to confine Local 206's rights to the specific Chatham store.

The complainant filed a complaint under section 89 of the Labour Relations Act alleging that the respondent trade union violated sections 68, 69, and 70 regarding his employment at a uranium mine.

The Board dismissed the complaint without a hearing pursuant to section 71(1) of the Board's Rules of Procedure.

Relying on the precedent in Pronto Uranium Mines Ltd., the Board determined that the mining and concentrating of uranium ore falls within federal jurisdiction, and therefore the provincial Board lacked jurisdiction to deal with the matter.

The applicant trade union applied for certification.

The respondent employer brought a preliminary motion to extend the terminal date, arguing that the Board notices were received and posted late, giving employees insufficient time to respond.

The majority of the Board dismissed the motion, finding that the actual notice given to employees was adequate, the Registrar complied with Rule 2, and no employees had appeared or objected to the application.

The Board found that the applicant had the requisite membership support and ordered that a certificate issue.

One Board member dissented, arguing that the time provided to employees fell short of the prescribed minimum and the terminal date should have been extended.

The applicant union applied for certification and requested a pre-hearing representation vote for a unit of part-time academic staff, professional counsellors, and professional librarians at the University of Ottawa.

The Board directed that a representation vote be conducted, defining the voting constituency and ordering that ballots of certain disputed categories of employees be segregated pending a final determination of the appropriate bargaining unit.

During a hearing for an unfair labour practice application, the respondent union sought production of notes that a complainant witness had used to refresh his memory prior to testifying.

The witness did not refer to the notes during his examination-in-chief.

The Board held that ordering production of such notes is a matter of discretion.

The Board declined to order production because the respondent failed to establish the factual basis for the exercise of discretion, such as the time elapsed between the witness referring to the notes and giving evidence, and because notes prepared for counsel are privileged.

The applicant union sought a declaration under sections 63 and 1(4) of the Labour Relations Act that the respondents, Capricorn Acoustics & Drywall Ltd. and J & J Drywall, were bound by the same provincial agreement.

The respondents conceded they carried on related activities under common control.

However, the Board declined to exercise its discretion to issue a related employer declaration.

The Board found that the union had delayed in bringing the application, there was no evidence that work had been transferred from the unionized entity to the non-union entity to erode bargaining rights, and the union was attempting to use section 1(4) to acquire bargaining rights for an established non-union workforce without going through the certification process.

The application was dismissed.

The union applied for certification.

The employer argued that membership evidence collected by an employee, Mr. Pyle, should be discounted because he threatened other employees with job loss if they did not sign union cards.

The Board found that Mr. Pyle did make such threats.

As a result, the Board declined to give full weight to the membership evidence and ordered a representation vote to ascertain the true wishes of the employees.

One Board member dissented, arguing that employers should not be permitted to participate in certification hearings regarding membership evidence.

The Ontario Public Service Employees Union applied for a declaration that the Ministry of Natural Resources' contract with two individuals to operate Fitzroy Provincial Park constituted a transfer of an undertaking under the Successor Rights (Crown Transfers) Act.

The Board found that the contractors were operating the park for their own account, assuming financial risks, and using the physical assets and similar jobs as formerly performed by Crown employees.

The Board concluded that the transaction was analogous to a lease or franchise and declared it a transfer of an undertaking from the Crown to an employer.

The applicants, employees of a cleaning company, applied to terminate the bargaining rights of the respondent union.

They submitted a petition signed by a majority of the bargaining unit employees.

The Board found that the majority of the signatures were collected by an employee who was a close friend of the employees' supervisor, and that she collected them during working hours after obtaining permission to leave early.

The Board concluded that the employees might have perceived management involvement or feared their wishes would be communicated to management.

Consequently, the Board held that the petition did not represent the voluntary wishes of the employees and dismissed the application.

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

The applicant, a teachers' federation, sought certification to represent occasional teachers employed by the respondent school board.

The respondent objected, arguing the applicant was not a 'trade union' under the Labour Relations Act because its membership included school principals, who allegedly exercised managerial functions.

The respondent also argued the applicant's constitution and practices discriminated on the basis of sex.

The Board held that the inclusion of principals did not deprive the applicant of its trade union status, noting that principals are included in teachers' bargaining units under the School Boards and Teachers Collective Negotiations Act and do not exercise managerial functions over occasional teachers.

The Board also found no evidence of prohibited sexual discrimination, concluding the applicant is a trade union entitled to seek certification.

The applicant union brought a preliminary motion regarding the filings made by the respondent in a series of certification applications.

The applicant argued that an agreement on the parties' respective positions had been reached before the Labour Relations Officer.

The Ontario Labour Relations Board dismissed the motion, finding that no such agreement was reached and that the Board had subsequently appointed an Officer to inquire into the list and composition of the bargaining unit.

The Board directed that the applications proceed based on the positions taken at the commencement of the Officer's inquiry.

The applicant union applied for certification, submitting documentary evidence of membership for over 55% of the employees in the bargaining unit.

A group of employees filed statements of objection, including four individuals who had previously signed union membership cards.

The Board found that the origination and circulation of the opposition documents were heavily influenced by a managerial employee, with the employer's knowledge and support.

Consequently, the Board concluded that the statements of objection did not represent a voluntary change of heart.

The Board declined to order a representation vote and granted certification based on the documentary evidence.

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

The employer requested reconsideration of a Board decision certifying the applicant union, arguing that some employees may not have received notice because the employer failed to post the required notices.

The Board dismissed the employer's request, finding that the employer could not raise objections on behalf of the employees and had failed to file a reply itself.

However, upon receiving a letter from an employee objecting to the certification and alleging lack of notice, the Board directed that the matter be listed for a hearing to determine whether employees were denied proper notice and what effect that should have on the certificates.

The applicants sought to terminate the bargaining rights of the respondent union representing maintenance employees of a trucking company.

The intervener employer argued that its business, which involved hauling freight internationally, was a federal undertaking outside the Board's jurisdiction.

The Board applied constitutional principles and found that the employer's continuous and regular international haulage constituted an undertaking extending beyond the limits of the province.

Consequently, the labour relations of its maintenance employees fell under federal jurisdiction.

The Board declared it lacked jurisdiction to entertain the application.