Employment and Labour Law

The complainant union alleged that the respondents committed unfair labour practices by laying off the captain and crew of a fishing vessel after they joined the union.

The Board found that the respondents altered the terms and conditions of employment during the statutory freeze period, contrary to section 79(2) of the Labour Relations Act.

The Board also found that the removal of fishing licences from the vessel and the subsequent layoff of the crew were motivated by anti-union animus, in violation of sections 66 and 70.

The Board ordered compensation for the grievors' lost earnings for the 1986 fishing season, but declined to order reinstatement due to the unprofitability and impending sale of the vessel.

Two unions applied under section 11 of the Labour Relations Act for directions allowing their representatives access to the respondent's remote bush camps to organize employees.

The incumbent union, which already represented the employees, was permitted to intervene.

The Board held that the only criteria for an access order under section 11 are that employees reside on property owned or controlled by the employer.

The Board rejected arguments that access should only be granted if there are no other reasonable means of communication, or that a more stringent test applies when employees are already represented by another union.

Finding the statutory criteria met, the Board directed the employer to allow access subject to specific conditions to prevent disruption.

The applicant union grieved that the respondent employer violated the provincial collective agreement by employing a member of another local on a project within the applicant's geographic jurisdiction without a referral slip.

The employer argued that the union's constitution and past practice estopped the union from enforcing the strict terms of the collective agreement.

The Ontario Labour Relations Board found that the union's constitution did not confer rights on the employer and that past practice did not amount to a representation giving rise to an estoppel.

The Board held that the employer breached the collective agreement and directed compensation.

The complainant, a registered nurse, filed complaints against her trade union and employer alleging violations of the Labour Relations Act, including a breach of the duty of fair representation.

The respondents moved to dismiss the complaint without a hearing on the merits, arguing it did not disclose a prima facie case.

The Board dismissed the motion, finding that the complaint raised complex questions of fact and law that were inappropriate to determine as a preliminary matter, though it dismissed the section 64 allegation for lack of standing.

The applicant union sought a determination under section 106(2) of the Labour Relations Act as to whether the Systems Manager was an employee within the meaning of the Act.

The respondent employer argued that the individual should be excluded under section 1(3)(b) because he exercised managerial functions.

The Board reviewed the principles for managerial exclusion and found that the Systems Manager possessed considerable authority over bargaining unit employees regarding computer systems, effectively hired and fired temporary employees, and was intimately involved in the budgetary process and costings of collective bargaining proposals.

The Board concluded that the Systems Manager exercised managerial functions and was therefore not an employee within the meaning of the Act.

The applicant trade union requested copies of the mailing lists supplied by the respondent school boards to the Ontario Labour Relations Board for the purpose of a pre-hearing representation vote.

The Registrar referred the request to the Board.

The Board held that, in occasional teacher certification applications, the general rule is that all interested parties have access to mailing lists supplied to the Board by respondents.

Any request to deny such access must be raised at the meeting with the labour relations officer.

Since no such request was made, the Board directed the Registrar to supply the applicant with the requested mailing lists.

During proceedings before the Ontario Labour Relations Board, the applicant issued summonses to two individuals requiring them to produce various documents relating to collective agreements and bargaining history.

The interveners objected to the scope of the summonses, arguing they were overly broad, irrelevant, and constituted a fishing expedition.

The Board held that a party seeking production through a summons need only demonstrate that the documents are arguably relevant to the matters in issue.

Finding that the requested documents were arguably relevant to the interpretation of the collective agreements and the admissibility of extrinsic evidence, the Board ordered production but narrowed the scope of the summonses to ensure they were not overly broad.

The International Woodworkers of America (IWA) applied for certification and requested a pre-hearing representation vote.

The Canadian Paperworkers Union (CPU) filed a subsequent application by way of intervention, also requesting a pre-hearing vote.

The CPU argued that its membership support should be assessed as of its actual application date, or alternatively, that it be allowed to withdraw its request for a pre-hearing vote to convert both applications to regular applications.

The Board rejected these arguments, treating the CPU's application as having been made on the date of the IWA's original application pursuant to section 103(3) of the Labour Relations Act.

Finding that the CPU lacked the requisite 35% membership support on that deemed date, the Board dismissed the CPU's application and directed a pre-hearing representation vote between the IWA and the incumbent union.

The complainant union alleged that the respondent employer violated sections 66 and 80(1) of the Labour Relations Act by refusing to re-hire a former employee for a part-time position because of his union activities and his testimony in previous Board proceedings.

The employer claimed the refusal was due to the employee's limited availability and lack of initiative.

The Board found that the employer failed to discharge its reverse onus under section 89(5) of the Act to prove that its decision was entirely free of anti-union animus, particularly because the employer failed to call the managers who actually made the hiring decision.

The Board drew an adverse inference from this failure and ordered the employer to offer the employee a part-time position and compensate him for lost wages.

The applicant employer referred a grievance to arbitration under section 124 of the Labour Relations Act, seeking to recover approximately $14,000 in room and board allowances allegedly improperly paid to a former employee.

The respondent union raised preliminary objections, including that the grievance was untimely.

The Board found that the employer had delayed considerably in filing the grievance, having first pursued criminal charges and civil litigation before turning to arbitration.

The Board declined to exercise its discretion under section 44(6) of the Act to extend the time limits, upholding the union's preliminary objection and dismissing the application.

The Board issued a decision quantifying damages and providing guidance on compensation following a finding that the employer committed unfair labour practices, including an unlawful lock-out and failure to bargain in good faith.

The Board awarded damages for the loss of opportunity to negotiate a collective agreement, determined that locked-out employees have a duty to mitigate their losses after an initial period, and ruled that lock-out pay received from the international union is a collateral benefit that is not deductible from the employer's compensation liability.

The Board declined to award legal costs or compensation for union officials' time spent at hearings, but allowed recovery for reasonable negotiating expenses and costs of the union's boycott campaign.

The Board convened a hearing to resolve implementation issues arising from its prior decision, which found the employer had unlawfully discharged a key union organizer.

The employer had refused to distribute the Board's decision to all employees, prompting the Board to clarify that individual delivery at the employer's expense was required.

On the issue of compensation, the employer argued the grievor failed to mitigate her damages.

The Board held that the duty to mitigate in unfair labour practice cases differs from wrongful dismissal, as the employee expects reinstatement and may continue union activities.

Finding the grievor made reasonable efforts to mitigate, the Board awarded $11,007.47 in lost wages and benefits.

Claims for general damages for mental distress and costs were denied.

The Ottawa Newspaper Guild applied for certification to represent a bargaining unit of approximately 13 employees in the computer information services department of The Ottawa Citizen.

The employer opposed the application, arguing that a tag-end unit or a combined unit with the advertising department was appropriate.

The Ontario Labour Relations Board found that the employees in the computer information services department shared a sufficient community of interest to form a viable bargaining unit.

Given the employer's long history of fragmented, departmental bargaining units without serious labour relations difficulties, the Board concluded that the proposed departmental unit was appropriate and granted the application.

The applicant trade union was previously certified to represent construction labourers employed by the respondent in all sectors, including the industrial, commercial and institutional (ICI) sector.

In a subsequent decision involving the same applicant, the Board determined that the applicant was an affiliated bargaining agent and therefore could not lawfully represent employees in the ICI sector except in specific trades, nor could it enter into a collective agreement for the ICI sector.

The Board reconsidered its original decision in this case based on written submissions.

The Board found that the original certificate authorized the applicant to do something unlawful.

As there were no employees outside the ICI sector on the application date, no appropriate bargaining unit existed.

The Board exercised its discretion to revoke the certificate.

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

The respondent employer raised a preliminary objection, arguing the Board lacked jurisdiction because the grievance pertained to non-construction maintenance work, whereas section 124 applies only to the construction industry.

The Board dismissed the preliminary objection, finding that because the applicant is a council of trade unions and the respondent operates a business in the construction industry, the Board has jurisdiction to hear the referral.

Whether the specific work falls under the collective agreement is a matter for the merits.

The applicant sought a declaration that its collective agreement with Local 2693 was unlawful and void under the Labour Relations Act, as Local 2693 was an affiliated bargaining agent and the agreement was not a provincial agreement.

Local 2693 requested an adjournment pending a Ministerial designation or reconsideration of a prior Board decision that found it to be an affiliated bargaining agent.

The Board denied the adjournment.

Applying the doctrine of res judicata, the Board held that the prior decision determining Local 2693's status was a decision in rem and therefore binding.

Consequently, the Board declared the collective agreement unlawful, null, and void.

The applicants sought a declaration under section 58 of the Labour Relations Act that the respondent union no longer represented the employees, alleging that a supervisor was involved in the union's organizing drive and intimidated employees into signing membership cards.

The Board dismissed the application without an inquiry into the merits, finding that the allegations, even if true, did not constitute fraud within the meaning of section 58.

The Board noted that such allegations of employer involvement and intimidation could be filed under other sections of the Act, but would raise concerns of timeliness.

The applicant union applied for certification of a bargaining unit of occasional teachers employed by the respondent school board.

The Board raised concerns about the adequacy of notice to employees and the applicant amended its application to request a pre-hearing representation vote.

The Board directed that a pre-hearing representation vote be taken, defined the voting constituency, and ordered the respondent to provide the applicant with the names and addresses of the employees on the voters' list.

The Board also ordered the ballot box sealed pending a future hearing on the respondent's objection that the application should not be entertained due to a recently withdrawn prior application.

The applicant employee sought a declaration terminating the respondent union's bargaining rights under section 59(1) of the Labour Relations Act, alleging the union failed to give notice to bargain within sixty days following certification.

The union conceded the notice fell outside the sixty-day period but provided evidence of its active involvement in representing the employees, including filing unfair labour practice complaints and preparing complex bargaining proposals for the taxi industry.

The Board found the union had not 'slept' on its rights and was actively fulfilling its obligations.

The application was dismissed.

Three employees filed complaints alleging they were discharged for raising safety concerns, contrary to section 24(1) of the Occupational Health and Safety Act.

The employer maintained they were discharged for leaving their work areas without authorization to conduct safety inspections and disrupting other employees.

The Board found the employer did not breach the Act, as the discharges were motivated by the employees' insubordination and disruption of work, not their safety complaints.

However, exercising its jurisdiction under section 24(7) to review the penalties, the Board upheld the discharge of one employee who had ignored a prior written warning, but substituted five-day suspensions for the other two employees who had not received clear warnings about their conduct.