Employment and Labour Law

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether to issue new designation orders or amend existing ones under the provincial bargaining sections of the Labour Relations Act.

The referral arose after a previous Board decision found that Local 2693 was an affiliated bargaining agent and thus prohibited from entering into non-provincial agreements for construction labourers in the ICI sector.

The Board reviewed the history of Local 2693, the statutory framework for provincial bargaining, and several options available to the Minister.

A majority of the panel recommended that the Minister not alter the existing status quo to promote stability in provincial bargaining, while the Vice-Chair dissented, favouring the preservation of Local 2693's historical bargaining rights.

The union applied for certification and filed an unfair labour practice complaint alleging the employer interfered with its organizing campaign by laying off 14 employees, granting a sudden wage increase, and engaging in intimidation.

The Board found that the employer's actions, particularly the layoffs and wage increase, were motivated by anti-union animus and violated the Labour Relations Act.

Concluding that the employer's misconduct created a climate where the true wishes of the employees could not be ascertained, the Board exercised its discretion under section 8 to certify the union and ordered the reinstatement of the laid-off employees with compensation.

The applicant union sought a direction under section 11 of the Labour Relations Act for access to the respondent's remote mining site to organize employees.

The parties agreed on most terms of access, but the employer sought to restrict access to 30 days and exclude the union from the bunkhouses.

The Board granted access to the bunkhouses, finding that the mere possibility of violence was not a compelling reason to restrict access to the employees' primary residence on the property.

The Board also granted the access order for a term of one year, as agreed to by the applicant, finding no compelling employer interest to limit it to 30 days.

The applicant trade union applied for certification to represent electricians and electricians' apprentices employed by the respondent in the construction industry.

The respondent argued the application should be barred due to a recently dismissed application and challenged the membership evidence.

The Board found no grounds to bar the application, accepted the new Form 80 declarations and membership evidence, and declined to order a representation vote.

The Board granted certification to the applicant.

The applicant, an employee in the meat department bargaining unit, applied to terminate the bargaining rights of the respondent union locals representing three bargaining units at a retail food store.

The union argued the supporting employee petitions were invalid for failing to distinguish between the specific locals, and that the applicant lacked standing to apply on behalf of units he was not a member of.

The Board rejected both arguments, finding the employees clearly intended to reject the union generally and had designated the applicant to act on their behalf.

A representation vote was ordered for all three bargaining units.

The applicant employee applied to terminate the bargaining rights of the respondent union.

The union argued the application was untimely and that the petition supporting it was not voluntary due to a history of employer unfair labour practices, including layoffs and contracting out, which created a chilling effect.

The majority of the Board found the application timely and the petition voluntary, noting the passage of time since certification and intervening events that could explain a change of heart.

A representation vote was ordered.

A dissenting Board member would have dismissed the application, finding the petition involuntary due to the cumulative chilling effect of the employer's prior violations of the Labour Relations Act.

The applicant union applied for certification of a bargaining unit of operating engineers employed by the respondent in the construction industry.

The sole issue was whether any employees were performing bargaining unit work on the application date.

Applying the criteria from Seegmiller and Gilvesey, the Board rejected the use of a 'representative period' and focused on the work performed on the application date.

The Board found that two employees who operated worker and material hoists spent a majority of their time performing bargaining unit work on that date, even when participating in loading and unloading.

The Board directed the issuance of certificates for the ICI sector and the relevant geographic area.

The complainants, members of the respondent union, accepted temporary maintenance jobs with Ontario Hydro under a CUPE collective agreement.

The respondent union subsequently directed them to quit these jobs, citing concerns that performing such work outside the hiring hall system jeopardized the union's jurisdiction and the interests of its members.

When the complainants refused, they were charged, tried, and fined under the union's constitution, and subsequently denied placement on the out-of-work list.

The complainants alleged violations of several sections of the Labour Relations Act, including the duty of fair representation.

The Board dismissed the complaint, finding that the union's actions were motivated by legitimate trade union interests and did not violate the Act.

The applicant union applied for certification to represent construction labourers employed by the respondent.

The parties disputed whether three employees performing cleanup work at a recently purchased building were construction labourers.

The Board found that the cleanup work was not closely connected to planned renovations and therefore was not construction work.

Having resolved the bargaining unit composition, the Board found the union had the requisite membership support and issued certificates for the industrial, commercial and institutional sector and all other sectors in the appropriate geographic areas.

The applicant union applied under section 11 of the Labour Relations Act for access to the respondent employer's remote road construction camp for organizing purposes.

The application against one respondent was withdrawn.

The remaining parties agreed on terms for access, but the employer requested an additional restriction to prevent the applicant from accessing the site on the same days as a competing union to avoid conflicts over the use of the single mess hall.

The Board declined to impose the restriction, finding it would unfairly disadvantage the applicant and that employees could handle being approached by competing organizers.

Access was directed on the agreed terms.

The applicant employer sought declarations that the concerted refusal of its employees to work overtime during a period of layoffs constituted an illegal strike under the Labour Relations Act.

The respondent union had a long-standing bylaw, accepted by the employer in practice, prohibiting overtime work while members were laid off.

The Board found that the employees were acting in accordance with a common understanding.

However, the Board declined to decide whether the conduct met the definition of a strike, instead exercising its discretion under section 92 of the Act to refuse the requested declarations and remedies.

The Board reasoned that intervening would not serve the interests of harmonious labour relations given the parties' historical acceptance of the practice and the voluntary nature of overtime under the collective agreement.

The United Steelworkers of America applied for certification to represent outside employees of the Township of Michipicoten.

The employer argued the application was barred by an existing agreement with the permanent employees of the public works department.

The Board found the existing agreement was not a collective agreement because the employee group lacked a constitution and formal structure, and therefore was not a trade union.

The Board also determined that an objecting employee classified as a mechanic leader did not exercise managerial functions.

A certificate was issued to the applicant.

The applicant employees applied to terminate the bargaining rights of the respondent union.

The union challenged the list of employees filed by the employer, arguing that the three individuals on the list were not hired in accordance with the union security and hiring hall provisions of the collective agreement.

The Board found that the individuals were hired contrary to the collective agreement and, applying the April Waterproofing principle, concluded they were not properly included in the bargaining unit.

As a result, less than forty-five percent of the employees in the bargaining unit had voluntarily signified they no longer wished to be represented by the union, and the application was dismissed.

The applicant unions referred a grievance to the Board.

The respondent employer raised a preliminary objection, arguing that the unions had abandoned their bargaining rights due to a lengthy period of inactivity.

The Board found that the unions had not abandoned their bargaining rights in the industrial, commercial, and institutional (ICI) sector, noting that under the province-wide bargaining provisions of the Labour Relations Act, the failure of an affiliated bargaining agent to administer a provincial agreement locally does not constitute abandonment by the employee bargaining agency.

The preliminary objection was dismissed and the matter was referred for a hearing on the merits.

The applicant union sought declarations under sections 63 and 1(4) of the Labour Relations Act that Masstron Scale Ltd. was a successor employer to Toledo Scale Division and that the two were related businesses under common control.

The respondents conceded the sale and common control but argued against a declaration binding Masstron to the collective agreement, claiming it would extend rather than protect bargaining rights.

The Board interpreted the collective agreement's scope clause in light of the parties' past practice, finding that the union's bargaining rights covered the geographic territory in question.

The Board granted the section 1(4) declaration, finding it necessary to prevent the erosion of existing bargaining rights, and declared Masstron bound by the collective agreement.

The Ontario Secondary School Teachers' Federation applied for certification to represent occasional teachers employed by three school boards.

The parties initially agreed on a bargaining unit description that excluded employees in existing bargaining units.

The Board revised the exclusionary language to clarify that the unit excludes persons who, when employed as substitutes, are 'teachers' under the School Boards and Teachers Collective Negotiations Act, reflecting the mutual exclusivity of the statutory regimes.

In the North York application, an employee's request to set aside the representation vote due to low turnout and short notice was dismissed, as notice was adequate and low turnout alone does not invalidate a vote.

In the Wellington application, the Board declined to dismiss the application based on a previously withdrawn application and directed the counting of ballots.

Certificates were issued for the Sault Ste.

Marie and North York units.

The union filed an unfair labour practice complaint alleging the employer breached its duty to bargain in good faith under section 15 of the Labour Relations Act by refusing to disclose the individual salaries of bargaining unit employees during collective bargaining.

The employer argued the information was confidential and that the union had waived its right to the information through past bargaining practices.

The Board held that a trade union is entitled to the wage rates of employees in the bargaining unit it represents, as this information is necessary to fulfill its role as exclusive bargaining agent.

The Board found the employer breached section 15 and directed it to provide the requested salary information.

The union applied for certification and invoked section 8 of the Labour Relations Act, requesting certification without a vote due to employer unfair labour practices.

During the organizing campaign, the employer laid off half the bargaining unit upon learning of the union activity.

The employer later recalled the employees and admitted the layoffs violated the Act.

The Board found that the employer's actions were a serious contravention of the Act, making it unlikely that the true wishes of the employees could be ascertained in a representation vote.

The Board also found that the union had adequate membership support for collective bargaining.

The application for certification was granted without a vote.

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

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employer violated the collective agreement by sub-contracting earthworks to a non-union contractor.

The collective agreement prohibited engaging non-union sub-contractors effective August 1, 1987.

The Board found that the sub-contracting of phase 4 work occurred after the effective date and violated the agreement, as the prior arrangements were too tenuous to constitute an engagement before August 1.

The Board remained seized with respect to remedy.

The applicant union filed ten applications for certification concerning truck and transport drivers employed by various respondents, along with a related employer application under subsection 1(4) of the Labour Relations Act.

The union requested pre-hearing representation votes.

Several respondents objected to the votes, arguing that the appropriate bargaining unit and employer identity could not be determined until the related employer application was resolved.

The Board directed that pre-hearing representation votes be conducted in ten separate voting constituencies, with ballots segregated where disputes existed regarding the inclusion of certain individuals or locations.

The Board held that the purpose of the pre-hearing vote procedure is to test employee wishes promptly, and that issues regarding the utility or effect of the votes would be determined at a subsequent hearing.