Employment and Labour Law

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 having employees perform non-destructive testing at the Pickering Nuclear Generating Station without applying the agreement.

The employer argued the agreement only applied to its construction operations, not to non-construction field work.

The Board found the union failed to prove the work in question fell within the scope of the collective agreement, as the evidence did not establish the technicians were engaged in construction operations.

The grievance was dismissed.

During a union certification hearing, the employer brought a motion requesting that the panel chair disqualify herself due to a reasonable apprehension of bias.

The motion was based on a comment the chair made regarding the authenticity of a signature on a counter-petition.

The Ontario Labour Relations Board applied the objective test for reasonable apprehension of bias and concluded that a reasonably well-informed person would not apprehend bias, as the comment merely indicated the trend of the evidence and the chair explicitly assured counsel they would have an opportunity to challenge it.

The motion was dismissed and the hearing was ordered to continue.

The applicant union brought an application under section 63 of the Labour Relations Act, alleging that a sale of a business occurred from Dant Industries Limited to One-Vinyl Window Mfrs.

Ltd. through a receiver, Dunwoody Limited.

Dant, a vinyl window manufacturer, went into receivership and its assets were purchased by One-Vinyl, which continued to operate from the same premises, using much of the same equipment and many former Dant employees, to produce a redesigned vinyl window.

The Board found that the transaction constituted a sale of a business within the meaning of section 63, as One-Vinyl acquired a functional economic vehicle rather than merely incidental assets, and there was no substantial change in the character of the business.

The applicant trade union applied for certification and requested a pre-hearing representation vote for a unit of dependent contractors.

The respondent employer argued that part-time dependent contractors and students should form a separate unit, and objected to the union receiving copies of the employee lists.

The Board directed a pre-hearing representation vote, defining the voting constituency to include all dependent contractors but ordering the segregation of ballots cast by alleged part-timers and students pending a final determination on the appropriate bargaining unit.

The Board also ordered that the union be provided with copies of the employee lists, as the employer failed to articulate any legal, policy, or factual reason for its objection.

The complainants filed a work assignment complaint under section 91 of the Labour Relations Act regarding the assignment of work functions associated with a new High Impact Welding process on a pipeline construction project.

The work had been assigned to the respondent union and others.

The Board considered criteria including collective bargaining relationships, skill and training, area past practice, and economy and efficiency.

The Board directed that the work be divided, assigning tasks related to explosives handling and detonation to the complainants, and tasks related to pipe preparation, belling, and final wiping to the respondent union.

In a union certification application, a pre-hearing representation vote was held.

The applicant union alleged the employer committed an unfair labour practice by holding a captive audience meeting the day before the vote, and requested the ballot box be sealed.

The Board considered whether the applicant's written submissions, which did not expressly request a hearing, constituted a statement of desire for a hearing under Rule 70.

The Board concluded that a request for a hearing could be implied from the filing of the unfair labour practice complaint.

The Board directed that the matter be listed for a hearing to determine whether the ballots should be counted.

The complainant union alleged that the respondent employer, a fishing company, committed an unfair labour practice by failing to rehire seven seasonal deckhands for the 1987 fishing season because of their support for the union.

The employer argued that the crew reduction was for legitimate business reasons and that the grievors had failed to formally request employment.

The Ontario Labour Relations Board found that the employer's departure from its usual informal hiring practices was orchestrated to exclude the grievors due to their union affiliation.

The Board declared a contravention of section 66(a) of the Labour Relations Act and ordered compensation for the lost 1987 and partial 1988 seasons.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether several individuals were 'employees' within the meaning of the Act.

The respondent hospital argued that the individuals were excluded due to managerial or confidential duties, or because they were excluded in the original certificate.

The Board found that the informational requirements for such applications were met.

It declined to direct an examination for two librarians, finding their inclusion or exclusion from the bargaining unit was an issue for arbitration.

For the remaining individuals, the Board appointed a Board Officer to inquire into their duties and responsibilities.

The applicant union alleged a sale of business and sought a related employer declaration concerning ISCL and 671860.

ISCL, a construction company, became insolvent and wound up in 1982.

Five and a half years later, the principal's wife incorporated 671860, which the principal managed, to perform construction work.

The Board dismissed the sale of business application as no assets or business were transferred.

However, the Board granted the related employer declaration, finding that despite the 5.5-year gap, the two companies carried on associated or related activities under common control and direction, and it was appropriate to pierce the corporate veil to preserve bargaining rights.

The complainant, a robotics supervisor, left the plant during his shift because he believed the employer's plan to repair gates on robotic cells while production was running was unsafe and violated lockout procedures.

The employer subsequently refused to allow him to return to work, claiming he had quit.

The Ontario Labour Relations Board found that the complainant did not quit and that the employer failed to discharge its burden under section 24(5) of the Occupational Health and Safety Act to prove that its refusal to continue his employment was not motivated, at least in part, by his efforts to enforce the Act.

The Board ordered the employer to compensate the complainant for his lost wages.

The applicant trade union applied under section 106(2) of the Labour Relations Act for a determination of whether an individual was an employee.

The respondent employer argued that the individual was an independent contractor and that the issue was merely whether he was covered by the collective agreement, not whether he was managerial.

The Board held that section 106(2) encompasses disputes over whether a person is an employee or an independent contractor, as independent contractors are excluded from the Act.

Finding that a valid question had arisen, the Board appointed a Board Officer to inquire into the individual's duties and responsibilities.

The applicant union referred two grievances to the Ontario Labour Relations Board under section 124 of the Labour Relations Act, alleging the respondent employer failed to apply the provincial ICI agreement to construction projects in Cambridge.

The employer argued it was only bound by a local multi-sector formwork agreement in the London area.

The Board found that the local formwork agreement, insofar as it purported to apply to the ICI sector, was null and void under section 146(2) of the Act.

Consequently, the local agreement did not create provincial ICI bargaining rights that the applicant could rely upon.

The grievances were dismissed.

The applicant union applied for certification in the construction industry.

The Board had to determine whether five disputed individuals were employees in the bargaining unit on the date of application.

The Board reconsidered a previous ruling and allowed the respondent to make unrestricted submissions regarding the list of employees.

Applying the test from E & E Seegmiller, the Board examined the work performed by each individual on the application date.

The Board concluded that one individual was performing carpentry work and was included in the unit, while the other four were not.

Finding that the applicant had the requisite membership support, the Board issued certificates to the applicant.

During a hearing for an alleged unfair labour practice, the applicant union sought to play a tape recording of an employee meeting during the cross-examination of a witness.

The Board ruled that the union could play the tape recording forthwith, without the Board first being satisfied as to its accuracy, provided the witness was first given an opportunity to deny or agree that he made the alleged statements.

The Board also continued a direction prohibiting communication of the tape's contents to the witness prior to it being played.

The complainant filed a reprisal complaint under section 24 of the Occupational Health and Safety Act against his supervisor and employer, alleging he was discharged for raising health and safety concerns.

The employer raised a preliminary objection that the Board lacked jurisdiction because the complainant had already grieved his discharge and the matter had been dealt with by a board of arbitration.

The Board upheld the preliminary objection, finding that the complainant had elected to have the matter dealt with by arbitration under the collective agreement, and therefore the Board had no jurisdiction to hear the complaint.

The complainant union alleged that the employer committed an unfair labour practice by issuing written communications to employees during collective bargaining.

The union argued that the employer was attempting to bargain directly with employees and undermine the union's exclusive bargaining rights.

The Ontario Labour Relations Board dismissed the complaint, finding that the employer's communications were accurate, did not disparage the union, and were permissible exercises of the employer's freedom of expression under section 64 of the Labour Relations Act.

The Board concluded that the employer was merely explaining its bargaining position and not attempting to negotiate directly with the employees.

The applicant union applied for certification and filed an unfair labour practice complaint.

The intervener union claimed an existing collective agreement barred the application.

At the hearing, the Board received evidence on this threshold issue but ran out of time for oral submissions.

The Board directed the parties to file written submissions on the collective agreement bar issue to expedite the proceedings, balancing the right to make submissions with the need for expedition in labour relations matters.

The applicant union requested reconsideration of a Board decision directing a representation vote, arguing the Board erred in including two equipment mechanics in the construction industry bargaining unit.

The union submitted that the mechanics worked primarily in the shop and should be excluded based on prior Board jurisprudence.

The majority of the Board dismissed the request, affirming that under section 117(b) of the Act, mechanics who regularly perform repair work both at the construction site and in the shop are commonly associated in their work with on-site employees.

A dissenting Board member would have granted reconsideration to recognize separate units for shop mechanics and site mechanics.

The applicant employers' organization applied for accreditation in the construction industry under section 125 of the Labour Relations Act.

The Board found that the applicant was a properly constituted employers' organization and that the proposed unit of employers was appropriate for collective bargaining.

The Board determined that the applicant represented a majority of the employers in the unit, who in turn employed a majority of the employees affected.

Although all statutory requirements for accreditation were met, the Board withheld the issuance of the certificate pending a determination on whether it would continue its practice of compiling a Final Schedule 'F' of employers.

The complainant union alleged that the respondent union engaged in an unlawful strike and secondary picketing by picketing a construction site where the primary employer was not present.

The respondent union argued the picketed companies were functionally integrated with the primary employer.

The Board found the picketing was impermissible because its true purpose was to pressure the neutral employers into recognizing the union and signing collective agreements containing a 'no subcontracting' clause.

However, the Board declined to void the resulting collective agreements, noting the employers had voluntarily adopted them and the complainant's representational rights were not affected.

A declaration of unlawful picketing was issued.