Employment and Labour Law

The union filed unfair labour practice complaints and a related employer application under section 1(4) of the Labour Relations Act after Metropolitan Life Insurance Company contracted out its cleaning services to Allen Maintenance Ltd. The union alleged that the contracting out was motivated by anti-union animus, that Metropolitan failed to disclose the decision during collective bargaining, and that Metropolitan and Allen were related employers or that Metropolitan remained the true employer.

The Board dismissed the applications, finding that the contracting out was a bona fide business decision, that no de facto decision had been made during bargaining that would trigger a duty to disclose, and that Allen was an independent contractor exercising fundamental control over its employees without common control or direction from Metropolitan.

The complainant, who could not read or write English, was transferred from his maintenance job to a production job after scoring lower than a junior employee on a written test.

He filed grievances challenging the employer's use of a written test to determine merit and ability.

The union decided not to pursue the grievances to arbitration, relying on the complainant's prior agreement to take the test and its interpretation of the collective agreement.

The complainant alleged the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The Board dismissed the complaint, finding no evidence of bad faith, discrimination, or arbitrary conduct in the union's decision-making process.

The applicant applied to terminate the respondent union's bargaining rights.

A representation vote was held where the applicant was the sole voter and voted against the union.

The union challenged the vote, arguing the applicant was not eligible to vote as he had not worked in the ICI sector prior to the vote, and that a single employee was not representative of the workforce.

The Board dismissed the union's objections, finding no evidence to doubt the applicant's eligibility and confirming that a single employee can constitute a bargaining unit for the purpose of terminating bargaining rights.

The Board declared that the union no longer represents the employees.

The applicant union sought a determination under section 106(2) of the Labour Relations Act that two individuals performing pole line construction for the respondent were dependent contractors and thus employees.

The Board applied the 11-factor test from Algonquin Tavern to assess the relationship.

The Board found that the individuals operated a specialized, independent business, supplied their own equipment, set their own unit prices, and retained control over their work methods.

Consequently, the Board concluded they were independent contractors, not dependent contractors, and dismissed the application.

The applicant union sought certification for construction labourers employed by the respondent.

The respondent and intervener requested an adjournment, arguing the Board needed to interpret an existing collective agreement and address a related employer issue.

The Board denied the adjournment, finding it unnecessary to interpret the existing agreement to determine the appropriate bargaining unit, and noting the related employer issue was not properly before it.

The Board defined the appropriate bargaining unit and scheduled further hearings to resolve disputes over the list of employees.

The applicant trade union sought certification for a unit of employees of the respondent, a company that prepares customers' materials for mailing via Canada Post.

The respondent argued that its labour relations fell under federal jurisdiction pursuant to s. 91(5) of the Constitution Act, 1867, as its operations were an integral part of the postal service.

The Board rejected this argument, finding that the respondent acted as a mail service broker and its operations were not an essential or integral part of Canada Post's core federal undertaking.

Having asserted provincial jurisdiction, the Board found the proposed bargaining unit appropriate and, based on the membership evidence, issued a certificate to the applicant.

The applicant union applied for certification of a bargaining unit of seasonal employees at the respondent's canning operation.

The respondent argued that the number of employees at the time of the application was not representative of the peak seasonal workforce and requested a representation vote based on the 'build-up' principle.

The Board held that the employees present at the time of the application were representative of the employment environment, which was characterized by short-term employment relationships similar to the construction industry.

The Board declined to order a representation vote and granted the certificate.

Board Member Gallivan dissented, arguing that the build-up principle should apply to seasonal employment outside the construction industry.

The applicant union applied for certification to represent carpenters employed by the respondent in the construction industry.

The parties agreed on the bargaining unit description but disputed the list of employees for the count.

The core issue was whether three carpenters working at the respondent's site were employees of the respondent or of a project management company, Sant Developments.

Applying the Board's seven-fold test for determining employer status, the Board found that the carpenters remained employees of Sant Developments, which hired, paid, and directed them, rather than the respondent.

As the union had the requisite support among the actual employees of the respondent, certificates were issued.

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

The parties agreed on the bargaining unit description but disputed the inclusion of numerous individuals.

The applicant also requested that the respondent provide a list of employee names and addresses, which was raised after the Labour Relations Officer's meeting.

The Board directed the pre-hearing representation vote but declined to entertain the request for the employee list because it was not raised at the Officer's meeting, emphasizing the importance of raising all issues at that stage to ensure expeditious processing.

The applicant union referred a construction industry grievance to the Board under section 124 of the Labour Relations Act, alleging the respondent employer violated the collective agreement by employing non-union members to perform catalyst discharging and loading work.

The respondent failed to appear at the hearing, and a late request for an adjournment was denied due to the need for expedition in construction grievances.

The Board found the respondent violated the union security clause and ordered it to pay $124,176.96 in compensation to the union in trust for the lost wages and benefits.

The applicant filed an application to terminate the respondent union's bargaining rights.

The union had previously applied for a direction to settle a first collective agreement by arbitration, which was granted by another panel of the Board.

The Board held that under section 40a(22) of the Labour Relations Act, it must consider the applications in the order it deems appropriate, and if it grants one, it must dismiss the other.

The Board determined it was appropriate to consider the first contract application prior to the termination application.

Since the first contract application was granted, the termination application was dismissed.

The applicant union applied for certification in the construction industry.

The central issue was whether an employee was performing carpentry work on the date of the application.

Applying the Gilvesy test, the Board found that while the employee was employed and at work on the application date, he spent the majority of his time chipping concrete columns rather than performing carpentry work.

As this left only one employee in the proposed bargaining unit, the application for certification was dismissed pursuant to subsection 6(1) of the Labour Relations Act.

The complainant alleged that his former employer and union conspired to dismiss him, contrary to the Labour Relations Act.

The employer raised preliminary objections, arguing the complaint should be dismissed due to delay and res judicata.

The majority of the Board refused to dismiss the complaint on the basis of delay, finding that the complainant only had suspicions until the alleged conspiracy was made public, and that res judicata did not apply.

The Board unanimously ruled that the reverse onus provision in subsection 89(5) applied, as the complaint involved allegations of anti-union animus affecting employment.

The Board ordered the employer to proceed first with its evidence.

The applicant sought to terminate the respondent union's bargaining rights under section 60 of the Labour Relations Act, challenging a voluntary recognition agreement.

The applicant attempted to rely on a Statement of Desire (petition) that had been filed during a previous, withdrawn certification application.

The Board held that a prior settlement agreement, which resolved the certification application and implicitly treated the petition as involuntary, precluded the applicant from relying on the petition in the current proceedings.

As the petition was deemed irrelevant and the union had majority membership support at the time of recognition, the application was dismissed.

The union referred a grievance to the Board under section 124 of the Labour Relations Act, challenging the discharge of a boilermaker.

The grievor was discharged after leaving the construction site during his shift without obtaining permission or providing a reason to his foreman.

The employer argued that the grievor's conduct warranted discharge, especially given previous warnings about attendance.

The Board found that while the grievor's conduct warranted some discipline, discharge was too severe a penalty given his length of service and the foreman's failure to object when the grievor announced his departure.

The Board exercised its discretion under section 44(9) of the Act to substitute a five-day suspension for the discharge and ordered compensation for lost wages.

A dissenting Board member would have upheld the discharge.

The union filed an unfair labour practice complaint alleging that the employer and Ministry of Health representatives violated sections 66 and 67(1) of the Labour Relations Act by bargaining directly with employees regarding terms for an Advanced Life Support Pilot Program and penalizing them for exercising their union rights.

The Board found that the work performed in the pilot program was outside the scope of the bargaining unit.

Consequently, the communications regarding terms and conditions for the program did not constitute direct bargaining in violation of the Act.

The complaint was dismissed.

The applicant union applied for certification to represent employees of the respondent's seed and feed operations in Blenheim, Ontario.

The respondent raised a preliminary objection, arguing that its operations fell under federal jurisdiction pursuant to section 45 of the Canadian Wheat Board Act and section 92(10)(c) of the Constitution Act, 1867.

The Board reviewed the nature of the respondent's operations, which included a feed mill, feed warehouse, and seed cleaning mills.

The Board concluded that these facilities were works declared by Parliament to be for the general advantage of Canada, placing them within exclusive federal jurisdiction.

Consequently, the Board dismissed the application for lack of constitutional jurisdiction.

During an application for certification, the respondent employer alleged that two employees had not paid the required one dollar fee when signing union membership cards.

The Ontario Labour Relations Board held an evidentiary hearing to assess the credibility of the witnesses.

The Board found that the union collector had engaged in deliberate misconduct by telling the employees not to worry about paying the fee and to conceal the non-payment.

Consequently, the Board rejected all 21 membership cards collected by that individual.

A dissenting Board member would have only rejected the two specific cards in question.

The applicant, Independent Local 385, applied under section 62 of the Labour Relations Act for a declaration that it acquired the bargaining rights of its predecessor by reason of a transfer of jurisdiction following its disaffiliation from the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers.

The respondents argued that the parent union, not the local, held the bargaining rights and that the local disaffiliated without them.

The Board found that the local union had held the bargaining rights for over a decade and retained them upon disaffiliation.

Because the applicant already held the bargaining rights and its identity continued unchanged, it was not a successor trade union.

The application was therefore dismissed.

The applicant union applied under section 40a of the Labour Relations Act for a direction that a first collective agreement be settled by arbitration.

The respondent employer's president had repeatedly stated he would not work with a union, refused to negotiate until a representation vote was held (despite the union already being certified), and threatened to close the business.

The Board found that the process of collective bargaining had been unsuccessful because of the employer's refusal to recognize the bargaining authority of the trade union.

The Board directed the settlement of a first collective agreement by arbitration.