Employment and Labour Law

The applicant union applied for certification.

The Board held a hearing to address the respondent's legal name, allegations regarding membership evidence, and the reliability of the Form 9 declaration.

The Board found that the Form 9 declaration was reliable, as the declarant had made adequate inquiries regarding the collection of membership cards and fees.

However, following the counting of the pre-hearing representation vote, not more than fifty per cent of the ballots were cast in favour of the applicant.

The application for certification was therefore dismissed.

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

At the hearing, the union sought leave to file a supplementary statement containing new material facts, which the respondent opposed.

The Board denied leave, citing the strict time limits and requirements of Practice Note 18.

The union also moved for a direction based solely on the pleadings and the existence of a lengthy strike, which the Board also denied, noting that evidence was required to establish the statutory prerequisites.

Following these rulings, the union sought leave to withdraw its application, and the Board terminated the matter.

The union filed an unfair labour practice complaint alleging the employer violated section 64 of the Labour Relations Act by refusing to allow a specific union representative on company premises for meetings.

The employer's refusal stemmed from a past incident where the representative exhibited aggressive behaviour.

The Board found that the employer's conduct was motivated by a personal conflict rather than anti-union animus.

The Board declined to intervene, concluding the matter was best resolved through collective bargaining rather than statutory remedies, and dismissed the complaint.

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

The Board had to determine whether the 'Gilvesy test' applied to determine which employees should be included in the bargaining unit for the purpose of the count, particularly concerning off-site mechanics under section 117(b) of the Labour Relations Act.

The Board held that the Gilvesy test applies, meaning employees must have spent a majority of their time on the date of application performing bargaining unit work.

The Board found no conflict between this test and section 117(b).

Applying this test, the Board determined the status of six disputed individuals, including some on the list of employees and excluding others based on their duties on the application date.

The applicant union applied for certification to represent occasional teachers and part-time supply instructors employed by the newly created French-language school board.

The respondent board argued it was not yet the employer of these individuals and raised issues regarding the bargaining unit description and the inclusion of certain employees transferred under recent legislation.

The Ontario Labour Relations Board found that the applicant had the requisite appearance of support of not less than 35 per cent of the employees in the voting constituency and directed the taking of a pre-hearing representation vote, leaving the substantive issues to be resolved at a subsequent hearing.

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

The respondent argued that its primary business of repairing concrete cracks in underground parking garages was maintenance, not construction, and therefore the construction industry provisions of the Labour Relations Act did not apply.

The Board applied the test from Master Insulators' and determined that the work involved restoring the waterproofing capacity of structures that had ceased to function properly, which constitutes repair rather than maintenance.

Consequently, the work fell within the construction industry, and the Board issued certificates to the applicant.

The complainant employer filed a complaint under section 91 of the Labour Relations Act regarding a work assignment dispute between two unions over the off-loading and conveying of drywall materials.

The work was actually performed by the employees of the material supplier.

The Board held that it lacked jurisdiction to entertain the complaint under subsection 91(1) because the union had not made a demand on the employer with actual responsibility for assigning the work (the supplier) to assign the work to its members.

The complaint was dismissed.

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

The respondent employer argued it was not an employer in the construction industry, as the work performed at a pulp and paper mill during an annual shutdown was maintenance, not construction.

The Board applied the Master Insulators' test and found the work—reinforcing a dissolving tank and replacing a vapour pipe—was maintenance work intended to preserve the functioning of the system, rather than repair work to restore a non-functioning system.

Consequently, the application could not proceed under the construction industry provisions.

However, treating it as a regular certification application, the Board found the applicant had sufficient membership support and issued a certificate for an all-employee bargaining unit.

One Board member dissented, characterizing the work as repair.

The applicant union brought a related employer application and an unfair labour practice complaint concerning the transfer of work from one facility to another.

The respondents requested that the Board rule on preliminary issues regarding the scope of relief and deferral to arbitration.

As the hearing on the merits would require at least six days and would be heard by a differently constituted panel, the current panel declined to entertain the preliminary arguments.

The matter was adjourned to be scheduled for a hearing on the merits, leaving the preliminary issues for the new panel to decide.

The applicant trade union applied for certification for a bargaining unit of electricians in the construction industry.

The Board held that because the trade of electrician is a compulsory certified trade under the Apprenticeship and Tradesmen's Qualification Act, the bargaining unit must be described in terms of journeyman and apprentice electricians.

Persons who are neither qualified journeymen nor apprentices cannot lawfully work in the trade and share no community of interest, and were therefore excluded from the bargaining unit for the purpose of the certification application.

The Board found that more than fifty-five percent of the employees in the bargaining unit were members of the applicant and directed that the hearing continue on outstanding issues.

The union filed an unfair labour practice complaint alleging that the grievor, a truck driver who hauled raw forest products for the respondent, was terminated contrary to the Labour Relations Act.

As a preliminary issue, the Board had to determine whether the grievor was a 'dependent contractor' and thus an employee under the Act, or an independent contractor.

After a 24-day hearing, the majority of the Board applied the eleven-factor test from Algonquin Tavern and concluded that the grievor was an independent contractor.

The grievor owned his own truck, could hire substitute drivers, was free to reject loads, and was not subject to the same control and discipline as the respondent's employee drivers.

Consequently, the Board lacked jurisdiction and dismissed the complaint.

A concurring member agreed with the result regarding the grievor but disagreed with the majority's broad findings about the respondent's other contractors.

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

After the vote was taken but before the ballots were counted, the applicant sought leave to withdraw its application, conceding it did not have sufficient membership evidence.

The Board refused leave to withdraw and dismissed the application.

The intervener requested that a six-month bar be imposed on future applications by the applicant under section 103(2)(i) of the Labour Relations Act.

The Board declined to impose a bar, reasoning that a bar is typically only imposed when a representation vote has fully tested the true wishes of the employees, which was not the case here since the applicant's membership evidence was insufficient to warrant counting the ballots.

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

A dispute arose over the number of employees in the bargaining unit, specifically whether temporary agency workers should be included.

The Board found that despite the 'all employee' description in the collective agreement, neither the union nor the employer ever intended for agency workers to be part of the bargaining unit.

The Board concluded that agency workers are not employees in the bargaining unit for the purposes of section 57 of the Labour Relations Act, and directed the matter to be relisted to determine the voluntariness of the petition.

The applicant union filed a jurisdictional dispute complaint under section 91 of the Labour Relations Act, seeking exclusive assignment of all heavy equipment floating work, which was currently shared with the respondent union.

The Board first denied the applicant's request to introduce evidence of area practice and certain documents due to its failure to comply with the Board's Rules and Practice Note regarding timely disclosure.

On the merits, the Board considered various criteria including collective bargaining relationships, economy and efficiency, employer practice, employer preference, job loss, and delay.

While economy and efficiency slightly favoured the applicant, the employer's long-standing practice of sharing the work, its preference to maintain the negotiated status quo, potential job loss for the respondent union, and the applicant's delay in bringing the complaint weighed heavily against altering the assignment.

The complaint was dismissed.

The applicant trade union applied for certification and subsequently sought to amend its proposed bargaining unit to exclude the industrial, commercial, and institutional sectors.

The respondent employer and objecting employees opposed the amendment, arguing it amounted to gerrymandering and that the applicant, as a council of trade unions, could not apply independently.

The Board held that the applicant was entitled to apply under either section 144(1) or (3) of the Labour Relations Act and permitted the amendment, finding it was merely a contraction of the unit and not gerrymandering.

A Labour Relations Officer was authorized to inquire into the composition of the bargaining unit.

The applicant union applied for certification.

The respondent employer argued that the Board's '30-30 rule' should not be applied to exclude certain laid-off employees from the bargaining unit, alleging the union intentionally timed its application to exclude them.

The Board held that the union's reliance on the 30-30 rule was not an abuse of process and that the laid-off employees lacked a sufficient nexus to the workplace at the time of the application.

The Board applied the 30-30 rule, excluding the laid-off employees from the bargaining unit, and scheduled further hearings to address the employer's allegations regarding membership evidence.

During a hearing for a request to reconsider a decision consenting to the early termination of a collective agreement, the intervening union (USWA) sought to introduce union membership cards to corroborate evidence of an organizing campaign.

The incumbent union and the employer objected, arguing that if the cards were admitted, they should be entitled to examine them, including the identities of the signatories.

The Board held that section 111(1) of the Labour Relations Act protected the confidentiality of the cards even outside a certification application.

Balancing the limited probative value of the cards as hearsay evidence against the potential prejudice to the other parties and the legislative intent to protect union membership confidentiality, the Board exercised its discretion to refuse to admit the membership cards into evidence.

The applicant employer sought declarations and directions under section 92 of the Labour Relations Act, alleging that the respondent union and employees engaged in an unlawful strike by picketing the employer's premises during conciliation.

The Board found that the picketing occurred solely during unpaid lunch breaks, was informational in nature, and did not restrict or limit the employer's output or business operations.

As there was no cessation of work or concerted activity designed to restrict output, the picketing did not constitute an unlawful strike.

The application was dismissed.

The applicant employer sought a cease and desist direction against the respondent union and its officials for an alleged unlawful strike.

The employees had refused to work on a 'Sears job', claiming it was 'struck work' from a sister local's dispute, relying on a provision in their collective agreement that permitted such refusals.

The Ontario Labour Relations Board held that the concerted refusal to work constituted an unlawful sympathetic strike under the Labour Relations Act.

The Board ruled that parties cannot contract out of the statutory prohibition against mid-contract strikes, rendering the collective agreement's 'struck work' clause void as a defence to the unlawful strike application.

The Board issued declarations and directions to cease the unlawful activity.

The Electrical Contractors' Association of Ottawa applied for accreditation as the bargaining agent for employers in the residential sector of the construction industry for whom the International Brotherhood of Electrical Workers, Local Union 586 holds bargaining rights in the Regional Municipality of Ottawa-Carleton, the United Counties of Prescott and Russell, and the County of Lanark.

The Ontario Labour Relations Board found the applicant to be a properly constituted employers' organization and the respondent to be a trade union.

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

The Board granted the application and issued a certificate of accreditation.