Employment and Labour Law

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether Critical Care Instructors are employees.

The respondent hospital argued the application failed to meet the informational requirements set out in The Windsor Star and requested dismissal or a hearing.

The Board found that the applicant's materials satisfied the requirements and that a 'question' had arisen regarding the status of the disputed individuals.

The Board appointed a Board Officer to inquire into their duties and responsibilities.

The applicant union applied under section 106(2) of the Labour Relations Act for a determination of whether Head Secretaries employed by the respondent school board were employees within the meaning of the Act.

The respondent argued the Board should not entertain the application because the position was expressly excluded from the bargaining unit during certification.

The Board decided to answer the question, noting the union's allegation of a bargaining table agreement to determine the issue via section 106(2) and the resources already expended on the inquiry.

On the merits, the Board found that Head Secretaries do not exercise managerial functions or act in a confidential capacity in matters relating to labour relations under section 1(3)(b).

The Board concluded they are employees under the Act.

The applicant referred a grievance to the Board.

A witness, Casey S. Locke, was duly served with a subpoena duces tecum but failed to attend the hearing.

The applicant requested an arrest warrant.

The Board, noting its authority under section 103(2)(a) of the Labour Relations Act to enforce the attendance of witnesses in the same manner as a court of record in civil cases, issued an arrest warrant requiring the witness's presence at the continuation of the hearing.

The applicant employers' organization sought accreditation as the exclusive bargaining agent for employers in the sewers and watermains sector.

The Board previously issued certificates of accreditation despite unresolved questions regarding whether two specific employers should be included in the unit, finding that the applicant met the double majority test under s. 127(2) of the Labour Relations Act regardless of the outcome.

The Board issued reasons for this jurisdictional finding, drawing an analogy to certification cases where unresolved employee status issues do not affect the union's right to certification.

The parties subsequently agreed on the status of the two employers, and the Board finalized the lists of employers.

The Board also varied the accreditation orders and certificates on consent to correct an error and clarify potential ambiguity.

During a complaint alleging a violation of section 24 of the Occupational Health and Safety Act, the complainant summoned an inspector with the Occupational Health and Safety Branch to testify.

The Ministry of Labour waived the inspector's non-compellability under section 34(2) of the Act, and the Director authorized the inspector to testify under section 34(3).

The respondent objected, arguing that policy considerations against an inspector testifying voluntarily should preclude the testimony.

The Board held that section 34(2) only addresses compellability, not competence, and found the inspector to be a competent witness.

The applicant union applied for certification under the construction industry provisions of the Labour Relations Act.

The respondent employer requested a hearing, alleging misrepresentation by the union and claiming it was engaged in maintenance rather than the construction industry.

The Board found that while the misrepresentation claim alone would not warrant a hearing, the claim regarding the nature of the respondent's business raised a jurisdictional issue under section 117 of the Act.

The Board directed the Registrar to list the application for a hearing to determine whether the respondent operates a business in the construction industry.

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

The respondents and the intervener argued that the appropriate bargaining unit should be the existing broader unit of all employees engaged in concrete forming construction, and that the applicant should not be permitted to carve out its craft.

The Board held that, consistent with its general practice in the construction industry and the provisions of the Labour Relations Act, a craft trade union is entitled to carve out its craft from an existing broader bargaining unit.

The Board found no compelling reason to depart from this practice and determined the appropriate bargaining unit accordingly.

The complainant requested that the Ontario Labour Relations Board reconsider its decision dismissing a complaint under section 70 of the Labour Relations Act.

The Board had previously dismissed the complaint on the basis that no appropriate remedy existed, even if a violation had occurred.

The complainant argued it was entitled to a decision on the merits of the alleged violation.

The Board denied the request for reconsideration, finding that the complainant failed to identify any new evidence, new submissions, or an alternative remedy that would warrant varying the original decision.

The complainant alleged that the union violated its duty of fair representation under section 68 of the Labour Relations Act by refusing to represent her at an arbitration hearing concerning a job promotion.

The union had decided to support the grievance of a more senior employee who was unsuccessful in the same job competition.

The Board dismissed the complaint, finding that the union is not required to represent both competing interests and did not act arbitrarily, discriminatorily, or in bad faith in choosing to support the senior employee's grievance.

The complainant's former counsel wrote to the Board requesting it reconvene to interpret a prior order that required the respondent union to retain and pay for counsel for the complainant.

The union had disputed the lawyer's retainer and refused to pay his account past a certain date.

The Vice-Chair declined to schedule a hearing, finding that the lawyer lacked standing to seek clarification or enforcement of the Board's order, as only the complainant and the union were parties to the order.

The Vice-Chair noted that disputes over a lawyer's retainer and unpaid accounts are proper subjects for the courts, not the Board.

The objectors sought to set aside the results of a representation vote in a union certification application, alleging irregularities including improper challenges to voter eligibility, electioneering by union supporters, and intimidation near the polling area.

The Ontario Labour Relations Board dismissed the objections, finding that the segregation of a challenged ballot followed standard procedure and did not compromise ballot secrecy.

The Board also found that the alleged electioneering and the presence of a union supporter near the polling area did not violate any specific Board direction, destroy the secrecy of the vote, or prevent the vote from revealing the true wishes of the employees.

The applicant union sought a declaration that the City of Etobicoke and the Etobicoke Public Library Board were related employers under section 1(4) of the Labour Relations Act, or alternatively that a sale of a business had occurred under section 63.

The union abandoned the section 63 claim.

The application arose after the Library Board contracted for the construction of a new library using non-union labour, while the City was bound by a collective agreement with the union.

The Board assumed without finding that the preconditions for a section 1(4) declaration were met, but declined to exercise its discretion to make the declaration.

The Board found that the City's involvement in the library construction was limited to its statutory financial obligations and did not constitute an attempt to avoid bargaining rights or interfere with the Library Board's labour relations.

The application was dismissed.

The applicant trade union applied for certification as the bargaining agent for plumbers and steamfitters employed by the respondent in the construction industry.

The applicant requested a clarity note to include welders working in these trades in the bargaining unit.

The Board held that because plumbing and steamfitting are compulsory certified trades under the Apprenticeship and Tradesmen's Qualification Act, only qualified journeymen or apprentices can lawfully work in those trades and be included in the bargaining unit.

The request for a clarity note regarding welders was denied, but the Board granted the application for certification for the qualified tradespersons.

The Board clarified a prior procedural direction regarding document production for the examination of persons whose employee status was in dispute.

The respondent argued the direction only required production of official job documents, while the applicant argued it required all documents relied upon.

The Board amended its direction to clarify that each party must produce every document in its possession, custody, or power on which it wishes to rely, and noted that parties are free to consult with examinees prior to their testimony to obtain relevant information.

The applicant union sought to convert its application for certification from one requesting a pre-hearing representation vote to a regular application.

The Board denied the request, finding that an applicant must make its choice at the time of filing and cannot later resile from it without consent or extraordinary circumstances.

The Board also dismissed the applicant's unfair labour practice complaint, finding that the respondent employer's transfer of two employees out of the bargaining unit was done in the normal course of operations and was not motivated by anti-union animus.

Consequently, the transferred employees were not entitled to vote in the pre-hearing representation vote.

During a hearing for a reconsideration of a Board decision granting early termination of a collective agreement, the respondent company brought a motion to dismiss the interveners' application after the interveners concluded their evidence.

The company argued it should not have to elect whether to call evidence.

The Board characterized the motion as analogous to a non-suit motion in civil proceedings and directed that the company and the applicant union (who supported the motion) be put to their election as to whether they intend to call evidence before ruling on the motion.

The applicant electrical contractor filed an application under section 135 of the Labour Relations Act, alleging that a representative of the respondent union threatened a general contractor with a picket line over a jurisdictional dispute regarding excavating work.

The Board found that the threat was made but declined to grant the requested declaration and directions, noting that the threat was an isolated incident, an apology was subsequently given, and there was no history of similar illegal conduct.

The Board also declined to retain jurisdiction over the issue of damages, stating that such relief is more appropriately sought under section 89 of the Act.

The application was dismissed.

The applicant union applied for certification.

The intervener union claimed a pre-existing collective agreement with the respondent employer barred the application.

The applicant challenged the validity of the agreement under sections 48 and 60 of the Labour Relations Act.

Following written submissions where the respondent and objectors also disputed the agreement's validity, the intervener withdrew its intervention and its claim to the collective agreement bar.

The Board found no bar to the certification application, noting that by withdrawing in the face of a challenge, the intervener abandoned any bargaining rights it might have held for the affected employees.

The applicant union sought to withdraw a series of certification applications filed in 1984 with the intent to file new ones.

The respondent employers argued that the applications should be dismissed and a 10-month bar imposed on any new applications pursuant to section 103(2)(i) of the Labour Relations Act.

The Board dismissed the applications but declined to impose a bar, noting that section 103(2)(i) is not a penal provision and should not be applied where the union's legal position was ultimately vindicated in earlier proceedings.

The complainant union filed multiple unfair labour practice complaints alleging that the respondent employer violated the statutory freeze and discriminated against employees for their union support during a displacement organizing drive.

The respondent employer raised a preliminary objection, arguing that the Board should defer the complaints to the grievance and arbitration process under the existing collective agreement with the incumbent union.

The Board dismissed the preliminary objection, declining to defer to arbitration because the complaints involved significant statutory rights, the complainant was not a party to the collective agreement, and the remedies available at arbitration might be inadequate.