Employment and Labour Law

The applicant union filed a construction industry grievance alleging that the respondent employer violated the provincial collective agreement by using non-union personnel to prepare interference drawings.

The union argued that interference drawings fell within the agreement's coverage of 'shop and field sketches' or, alternatively, its basket clause for 'all other work included in the jurisdictional claims' of the union.

The Board found a latent ambiguity in the agreement and admitted extrinsic evidence of past practice and negotiating history.

The Board concluded that the parties had never agreed to include interference drawings in the 'shop and field sketches' clause, and that the basket clause only covered work similar in nature to the specifically enumerated work.

The grievance was dismissed.

The respondent employer applied for reconsideration of the Board's decision to certify the applicant union, alleging that employees did not receive proper notice of the application because the employer failed to post the required notices.

The Board noted that the applicant union also failed to properly complete and file an Advice of Posting Card.

Given the lack of evidence that employees received proper notice, the Board declined to dismiss the reconsideration application without a hearing and directed that the matter be listed for a hearing to receive evidence on the notice issue.

The complainants alleged that the respondent Union breached its duty of fair representation under section 68 of the Labour Relations Act by negotiating and signing a collective agreement for franchised stores without submitting it to the membership for ratification.

The Board found that the Union's officers honestly and reasonably believed that a prior agreement, which had been ratified by the membership, authorized them to enter into the franchise agreement without a further vote.

The Board concluded that the Union did not act in a manner that was arbitrary, discriminatory, or in bad faith, and dismissed the complaint.

The complainant, who was performing sandblasting work, refused to continue working without proper safety equipment after sand got into his eyes.

The employer discharged him for this refusal.

The Ontario Labour Relations Board found that the employer breached section 24(1) of the Occupational Health and Safety Act by discharging the complainant for acting in compliance with the Act.

The employer, who did not appear at the hearing, was ordered to pay $2,100 in compensation for lost wages.

The applicant employer sought declaratory relief under section 92 of the Labour Relations Act regarding an alleged work slowdown by the respondent union.

The Board dismissed the application, noting that the alleged slowdown had ended nine months before the application was filed and the union's bargaining rights had since been terminated.

The Board held that it would not be in the interests of sound labour relations to grant declaratory relief where a party delays bringing the application until long after the allegedly unlawful conduct has ceased.

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

The parties had previously signed an Officer's Report agreeing that there was one employee in the bargaining unit on the application date.

At the hearing, the union attempted to resile from this agreement, arguing there were no employees in the unit.

The Board held the union to its agreement, emphasizing the importance of settlement documents.

The Board also found the petition supporting the application to be voluntary, despite the applicant's consultation with a fellow employee and the use of a company bulletin board to announce a meeting.

A representation vote was ordered.

The applicant trade union sought a determination under section 106(2) of the Labour Relations Act as to whether a Print Shop Supervisor and five Behaviour Counsellors were employees within the meaning of the Act.

The Board found that the Print Shop Supervisor was not an employee because she was employed in a confidential capacity in matters relating to labour relations.

However, the Board found that the Behaviour Counsellors did not exercise managerial functions or have access to confidential labour relations information, and were therefore employees under the Act.

The union applied for certification.

A group of objecting employees filed a statement of desire (petition) opposing the union.

The Board held a hearing to determine if the petition represented a voluntary expression of employee wishes.

The Board found that the employee who originated and circulated the petition, while not exercising actual managerial authority, acted as a conduit to management and performed duties closely aligned with management.

Given her relationship with management and the circumstances of the petition's circulation, the Board concluded that reasonable employees would perceive management involvement and fear that their decision to sign or not sign would become known to the employer.

Therefore, the Board gave no weight to the petition and issued a certificate to the union.

The applicant union applied for certification as the bargaining agent for ironworkers employed by the respondent.

The Board had previously extended the terminal date to ensure proper notice to employees.

Prior to the new terminal date, the applicant filed additional membership evidence.

The respondent objected to the admission of this new evidence, arguing the extension was solely for notice purposes.

The Board rejected the respondent's argument, holding that employees are free to express their wishes up to the terminal date, and accepted the evidence.

Finding that the applicant had the requisite membership support of over fifty-five percent, the Board issued certificates for the industrial, commercial, and institutional sector, as well as all other sectors in the appropriate geographic areas.

The complainant brought a motion to remove the respondents' counsel, alleging a conflict of interest arising from prior representation.

The Board dismissed the motion, expressing serious doubts about its statutory jurisdiction to regulate the professional conduct of barristers and solicitors, noting that the Statutory Powers Procedure Act protects the right to counsel and specifically exempts lawyers from the tribunal's power to exclude incompetent agents.

Ultimately, the Board declined to entertain the motion on discretionary grounds, finding that the conflict issue was entirely separate from the merits of the duty of fair representation complaint and that determining it would cause undue delay and risk conflicting decisions with the Law Society of Upper Canada or the courts.

The United Steelworkers of America applied for certification to represent employees at Continuous Mining Systems Limited.

A group of objecting employees argued the application should be dismissed under section 13 of the Labour Relations Act because the employer provided the union with an employee list.

The Board found this did not constitute prohibited employer support.

The Board also determined that a lead hand did not exercise managerial functions.

The union's unfair labour practice complaints regarding employer statements were dismissed.

However, the Board found that an employee petition opposing the union was not a voluntary expression of true wishes, given the involvement of lead hands and other circumstances.

A certificate was issued to the applicant.

The applicant applied for an exemption from union dues under section 47 of the Labour Relations Act.

The Board dismissed the application as premature because there was no collective agreement in force between the respondent trade union and the employer.

Section 47 requires a collective agreement containing a mandatory dues provision to be in place before the Board has jurisdiction to grant an exemption.

The applicant union filed a grievance under section 124 of the Labour Relations Act seeking to enforce a collective agreement clause imposing a 1% per day compounded penalty on late benefit contributions.

The respondent employer paid the principal amount of $137,507.50 after the first day of hearing, leaving a penalty claim of $35,361.85 for 23 days of delay.

The Board held that the clause was penal and unconscionable, as the effective annual interest rate exceeded 3000% and was disproportionate to any actual damages suffered by the benefit funds.

The Board declined to enforce the penalty clause and instead awarded interest on the late payment at the chartered banks' prime rate.

The respondent employer brought a preliminary motion to dismiss the union's application for certification and impose a bar on future applications, arguing that the union had filed six applications for substantially the same group of employees in two months.

The Board declined to exercise its discretion under section 103(2)(i) of the Labour Relations Act to dismiss the application and impose a bar.

The Board found that while the union's slipshod manner of filing and withdrawing applications was not condoned, the mere frequency of the applications in these circumstances did not constitute an abuse of process or warrant depriving employees of their right to trade union representation.

The applicant sought to terminate the respondent union's bargaining rights for a unit of fishing employees.

The Board found that the petition signed by the employees was not a voluntary expression of their true wishes, as they were motivated by a belief that the employer would financially reward them with increased fishing quotas if they decertified the union.

The application was dismissed.

Following a decision finding the respondents liable for violations of the Labour Relations Act, the respondents requested a re-attendance to address the impact of an Employment Standards award on the Board's compensation order, and to amend the wording of the Notice to Employees.

The Board found the request regarding compensation premature, as the parties had not yet attempted to resolve the quantum of damages themselves.

The Board agreed to amend the Notice to Employees to accurately reflect the specific remedy granted in the decision.

The complainants, representing plumbers and electricians, challenged the general contractor's assignment of the installation of patient service modules at a hospital construction project to carpenters and labourers.

While area past practice strongly favoured assigning such work to plumbers and electricians via subcontracts, the general contractor had no collective agreement with the complainants and had assigned the work to its own employees, with whom it had collective agreements.

The Board upheld the assignment to the carpenters and labourers, noting that directing the work to the complainants would effectively require the general contractor to subcontract the work due to the electricians' restrictive hiring practices.

The complainant alleged that her union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to properly communicate the terms of a settlement regarding her discharge grievance.

The settlement required the complainant to present herself for work by a specific date, failing which her grievance would be withdrawn.

The complainant, who was recovering from a work-related injury and awaiting surgery, was unaware of this requirement and failed to report, resulting in the withdrawal of her grievance.

The Board found that the union failed to satisfy its evidentiary onus to show it had properly communicated the settlement terms, concluding that this failure constituted arbitrary conduct.

The complaint was allowed, and the Board remained seized of the issue of damages.

The applicant employer sought directions under section 92 of the Labour Relations Act, arguing that a collective agreement was in place after bargaining unit employees voted to accept the employer's final offer.

The union had conducted the vote but did not recommend acceptance and subsequently refused to sign the agreement, stating the offer was unacceptable to the union's executive.

The Board dismissed the applications, finding that a collective agreement is a contract between the employer and the union, not the employees.

Because the union had not agreed to be bound by the vote results and had not accepted the employer's offer, no collective agreement was in force.

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

The respondent requested a hearing, arguing it was not actively engaged in the construction industry and that the project was of short duration.

The Board disposed of the application without a hearing, finding that the respondent's admissions in its reply established it was engaged in construction activities.

The Board amended the geographic description of the bargaining unit to reflect the actual location of the project in a 'white area' and issued certificates to the applicant.