Employment and Labour Law

The complainant, a 65-year-old employee, alleged that the union violated its duty of fair representation under section 68 of the Labour Relations Act by negotiating a collective agreement that reduced the automatic retirement age from 70 to 65.

The union had agreed to the age reduction as an inducement to younger workers in exchange for their support in prioritizing improved, indexed pensions for retirees.

The Board held that the union's decision was based on a rational balancing of competing interests within the bargaining unit.

The Board concluded that the union's conduct was not arbitrary, discriminatory, or in bad faith, and dismissed the complaint.

During a Labour Relations Officer's inquiry into the list and composition of a bargaining unit, the parties requested an adjournment to schedule a Board hearing for viva voce evidence regarding a serious credibility issue.

The Board declined to interrupt the inquiry, noting that credibility issues can typically be resolved by scrutinizing the verbatim transcript of the Officer's proceedings and hearing subsequent oral submissions.

The Board directed the Officer to continue the examination and the parties to adduce all evidence, including on credibility, before the Officer.

The applicant union local sought a declaration under section 62 of the Labour Relations Act that the respondent union local was not its successor following a merger ordered by the international union president.

The Board found that the employer intervener had status to participate but could not lead evidence on the business consequences of the merger.

The Board determined that the merger was conducted in accordance with the union's constitution, which did not require a membership vote.

However, the Board raised concerns about the effect of section 137(2) of the Act and the provincial agreement on the application, and referred the matter for a further hearing on that issue.

An employee challenged the procedure for segregating ballots in a pre-hearing representation vote, expressing concern that the secrecy of the ballot was compromised because his voter number appeared on the outer envelope.

The Board explained the two-envelope system used for segregated ballots, confirming that the inner envelope and the ballot itself contain no identifying marks, and that ballots are mixed before counting to ensure secrecy.

The Board found no merit in the employee's concerns and declined to direct a new vote.

The applicant union referred a grievance to arbitration, alleging the respondent employer violated the provincial collective agreement by assigning work to non-members.

The respondent argued it was not bound by the agreement, asserting the union had abandoned its bargaining rights.

The Board found that the union had not contacted the respondent to negotiate or administer the agreement for almost 15 years, despite the respondent operating openly in the relevant geographic area.

Consequently, the Board concluded the union had voluntarily abandoned its bargaining rights prior to the introduction of province-wide bargaining, and dismissed the application.

The complainant union alleged that the employer committed unfair labour practices, breached the statutory freeze, and failed to bargain in good faith when it laid off all registered nurses at its London retirement lodge shortly after concluding first collective agreements.

The employer maintained the layoffs were part of a broader, division-wide reorganization prompted by financial concerns and a shift to a 'wellness concept' for residents.

The Board found no anti-union animus or unlawful lockout, accepting that the decision was driven by legitimate business reasons.

The Board also concluded that the reorganization decision was finalized after the collective agreements had been ratified, meaning the statutory freeze and the duty to bargain in good faith had already expired.

The complaint was dismissed.

The applicant union applied for certification of a bargaining unit of employees at the respondent's asphalt plant operations.

The parties disputed whether six seasonal employees engaged in preparatory work at the plant/shop should be included in the bargaining unit.

The majority of the Board found that these employees were covered by the existing Kingston area agreement for construction operations, as they were construction employees temporarily preparing equipment.

Consequently, they were excluded from the proposed bargaining unit.

A representation vote was ordered for the remaining eligible employees.

The applicants applied for certification regarding employees of the respondent working on the rehabilitation of the Welland Canal.

The respondent argued that the work was an integral part of a federal undertaking, placing labour relations under federal jurisdiction.

The Ontario Labour Relations Board applied the Supreme Court of Canada's decision in Construction Montcalm Inc., holding that construction work, even on a federal undertaking, falls within provincial jurisdiction over labour relations.

The Board concluded it had jurisdiction to entertain the applications.

The complainants, members of the respondent union, alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The union had settled several proceedings against an employer, recovering $21,069.06, which it allocated to its general fund rather than to the complainants' benefit accounts.

The Board found that the union did not act arbitrarily, discriminatorily, or in bad faith, as the complainants had previously signed individual contracts waiving their benefits and had shown no interest in pursuing them until after the settlement was reached.

The complaint was dismissed.

Two unions applied for certification of the respondent's employees.

The incumbent union, UFCW, argued that its existing collective agreement with the predecessor employer automatically renewed and acted as a bar to the applications.

The applicant, CAW, argued that UFCW had abandoned its bargaining rights by failing to enforce the collective agreement for over a year after the respondent purchased the plant.

The Board found that the UFCW's decision not to enforce the agreement was a strategic choice to allow the new employer to establish itself financially, not an abandonment of bargaining rights.

The Board held that the collective agreement automatically renewed and constituted a bar to the certification applications, which were accordingly dismissed.

The union applied for certification.

The employer and objecting employees alleged misconduct in the collection of membership evidence, including non-payment of the required $1 fee by one employee and misrepresentations by union organizers.

The Board found that one employee did not pay the fee and rejected his card, and gave no weight to cards collected by one organizer due to his misconduct and lack of credibility.

However, the remaining valid cards left the union in a vote position.

The Board dismissed the union's request for automatic certification under section 8, finding the employer's intemperate comments did not prevent the ascertainment of employees' true wishes.

A representation vote was ordered.

The applicant union applied for certification as the bargaining agent for glaziers employed by the respondent in the construction industry.

The respondent disputed the employee status of three individuals, arguing they were employees of another company, independent contractors, or moonlighting contrary to a collective agreement.

The Board applied the fourfold test and the organization test, finding that the three individuals were employees of the respondent on the date of the application.

As the union had the requisite membership support, the Board issued the certificates.

The union applied for certification to represent employees at the respondent's hatchery.

The employer objected, arguing the employees were employed in agriculture and thus excluded from the Labour Relations Act under section 2(b).

The union countered that section 2(b) violated the Charter.

The Board unanimously found that the hatchery employees were employed in agriculture.

On the preliminary issue of jurisdiction, the majority held that the Board is a 'court of competent jurisdiction' under section 24(1) of the Charter and has the authority under section 52(1) to determine whether the agricultural exemption is constitutional.

The employer's objection to jurisdiction was dismissed, and the matter was directed to be scheduled for a hearing on the Charter challenge.

A dissenting member would have found the Board lacked jurisdiction to strike down the exemption.

The applicant union applied for certification and filed documentary evidence of membership on behalf of more than 55% of the employees in the bargaining unit.

The respondent employer and objecting employees requested that the Board exercise its discretion under section 7(2) of the Labour Relations Act to order a representation vote, citing a close margin of support, employee turnover, past unsuccessful collective bargaining, and potential peer pressure.

The Board declined to order a vote, finding that the union had established the requisite clear majority and that none of the raised concerns warranted departing from the statutory scheme of automatic certification.

A certificate was issued to the applicant.

The applicant trade union applied for certification as the bargaining agent for construction labourers employed by the respondent.

The respondent requested a hearing, arguing that its current workforce was unrepresentative due to a seasonal build-up of employees expected in the spring.

The Board exercised its discretion under the Labour Relations Act to decline a hearing and refused to consider the anticipated build-up, noting the short-term and seasonal nature of employment in the construction industry.

Finding that more than fifty-five percent of the employees in the bargaining unit were members of the applicant, the Board issued the requested certificates.

The complainants, former employees of a closed dairy plant, alleged that their union breached its duty of fair representation under section 68 of the Labour Relations Act by endtailing their seniority when they transferred to another plant, rather than dovetailing it.

The Ontario Labour Relations Board dismissed the complaint, finding that the union faced a difficult choice between competing groups of employees with different legal rights under separate collective agreements.

The Board concluded that the union's decision to endtail the transferring employees' seniority was not arbitrary, discriminatory, or made in bad faith, as it was based on legitimate factors including the employees' legal positions and the employer's stance.

The applicant employer requested that the Board reconsider its earlier decision declining to issue a declaration that employees engaged in an unlawful strike by refusing to work overtime.

The applicant argued the Board failed to determine if an unlawful strike occurred, relied improperly on estoppel, and that the Vice-Chair improperly conferred with others.

The Board dismissed the reconsideration request, finding it unnecessary to determine if a strike occurred when it had already decided not to grant the requested remedy, and noting the applicant's other grounds did not meet the test for reconsideration.

The applicant trade union applied for certification in the construction industry.

The parties disputed the appropriate bargaining unit description, specifically whether dependent contractors should form a separate bargaining unit under section 6(5) of the Labour Relations Act.

The Board held that section 144(1), which mandates a single provincial unit for all employees (including dependent contractors) in the industrial, commercial, and institutional sector, conflicts with and prevails over section 6(5).

The Board determined the appropriate bargaining unit and appointed a Board Officer to inquire into the list and composition of the unit.

The complainant union (CUPE) alleged that the respondent university violated section 64 of the Labour Relations Act by prohibiting the University of Toronto Staff Association (UTSA) from using the university's internal mail service to distribute CUPE organizing materials.

UTSA had historically enjoyed unrestricted access to the mail system.

The university argued that permitting the distribution of union organizing materials would constitute employer support for a trade union, violating sections 13 and 64 of the Act.

The Board held that the university's restriction of an existing practice constituted interference with the union's rights.

The Board declared a violation of section 64 and directed the university to permit UTSA access to the internal mail service in the manner previously enjoyed.

During a five-year strike, the complainant union requested an interim order directing the respondent employer to return striking employees to work pending the final disposition of the matter.

The Board treated the request as a motion for reconsideration of an earlier order.

To facilitate a gradual return to work without prejudicing the ongoing litigation regarding whether the employer's return-to-work protocol was discriminatory, the Board directed the respondent to implement its outstanding January 9, 1987 proposal for a complete collective agreement as an interim measure.