Employment and Labour Law

During a union certification proceeding, the respondent employer sought consent under Rule 72(4) of the Board's Rules of Procedure to adduce evidence of alleged intimidation by a union organizer.

The alleged incidents occurred prior to a representation vote but were not raised by the respondent within the time limits prescribed by the Board's rules.

The Board denied the request, emphasizing the need for expedition in labour relations matters and finding that the respondent had not acted with due diligence in raising the allegations.

The applicant union applied for certification and sought a related employer declaration under section 1(4) of the Labour Relations Act, arguing that Excavating and Lawrence Construction were under common control and direction.

The respondents objected, arguing that section 1(4) could not be used to acquire bargaining rights where none previously existed.

The Board ruled that it had jurisdiction to make a related employer declaration in the context of a certification application.

Finding that the two entities were associated businesses under common control, the Board declared them a single employer and issued certificates to the applicant.

The Board held a hearing to determine the compensation owed to the complainant following a finding that she was unlawfully discharged for a work refusal under the Occupational Health and Safety Act.

The employer argued that compensation should be reduced due to the complainant's failure to mitigate damages, her delay in filing the complaint, and her receipt of unemployment insurance benefits.

The Board found that the complainant made reasonable efforts to mitigate her damages and declined to deduct unemployment insurance benefits from the award.

However, the Board reduced the compensation period by 16 weeks due to an unexplained delay in filing the complaint.

The employer was ordered to pay $10,242.18 in compensation and interest.

The union filed an unfair labour practice complaint alleging that the employer engaged in surface bargaining and sought to undermine the union by demanding significant wage and benefit concessions.

The employer maintained that its demands were a legitimate response to severe financial losses and a need to improve productivity.

The Ontario Labour Relations Board dismissed the complaint, finding that the employer was engaged in lawful hard bargaining.

The Board held that the duty to bargain in good faith does not preclude an employer from using its bargaining power to achieve a collective agreement on its own terms, even if those terms involve substantial concessions, provided the employer genuinely intends to conclude an agreement.

The Ontario Nurses' Association (ONA) alleged that a rationalization plan transferring obstetrics and paediatrics services from St. Mary's General Hospital to Kitchener-Waterloo Hospital constituted a 'sale of a business' under section 63 of the Labour Relations Act.

The Board found that a sale of part of St. Mary's business had occurred and that the employees were intermingled.

However, because ONA represented only a small percentage of the resulting 'all nurses' bargaining unit at Kitchener-Waterloo, the Board declined to order a representation vote and declared that ONA no longer held bargaining rights.

The Board also found that Kitchener-Waterloo breached section 66 of the Act by treating St. Mary's nurses as new hires rather than offering them preferential transfer rights, doing so specifically to avoid successor rights obligations.

The union applied for certification in the construction industry and filed an unfair labour practice complaint alleging the employer laid off three employees due to union activity.

The Board found that petitions filed by employees opposing certification were not voluntary, as they followed a meeting where the employer implied future employment might be jeopardized by unionization.

The Board granted the certification and issued certificates.

However, the Board dismissed the unfair labour practice complaint, accepting the employer's evidence that the three laid-off employees were not offered further work because they had previously indicated they did not want to continue working for the employer.

The union applied for certification of a bargaining unit of employees at two Midas Muffler locations.

The employer and objectors challenged the union's membership evidence because the receipts lacked the collector's signature, and the objectors filed petitions opposing certification.

The Board held that the membership evidence was valid despite the technical defect, as oral evidence confirmed the collector's identity and the payment of the initiation fee.

The Board also found that the petitions were not voluntary, as they were circulated by employees perceived to be aligned with management and amidst rumours of job losses if the union was certified.

The Board granted the certification application without a representation vote.

One Board member dissented.

The union applied under section 40a of the Labour Relations Act for a direction to settle a first collective agreement by arbitration.

The parties had engaged in fourteen negotiating sessions over ten months but remained at an impasse on key issues including union security, wages, and a specific penalty clause for discharge.

The Board found that the employer had taken uncompromising positions without reasonable justification, failed to make reasonable or expeditious efforts to conclude an agreement, and effectively refused to recognize the union's bargaining authority.

The Board directed the settlement of the first collective agreement by arbitration.

The applicant sought to introduce a report and supplementary report prepared for the Ministry of Labour in 1980 by George W. Adams to show the mischief that existed prior to certain amendments to the Labour Relations Act.

The respondent objected to their admissibility.

The Ontario Labour Relations Board ruled that the reports were admissible for the purpose sought by the applicant.

The Board directed the parties to file written submissions on the probative value of the material.

The complainant trade union filed an unfair labour practice complaint alleging that the respondent employer violated the Labour Relations Act by making intimidating comments to a union official and subsequently laying him off from his position as an assistant dispatcher.

The employer claimed the layoff was due to a business slowdown and the employee's loss of his driver's licence.

The Ontario Labour Relations Board found that the employer failed to discharge its burden of proving that the layoff was free from anti-union animus.

The Board concluded that the elimination of the assistant dispatcher position was motivated, at least in part, by the employee's participation in Board proceedings and his union activity.

The Board ordered the employer to reinstate the employee with full compensation and to post a notice in the workplace.

The complainant trade union alleged that the respondent hospital employer violated the statutory freeze provisions of the Hospital Labour Disputes Arbitration Act (HLDAA) and the Labour Relations Act (LRA).

The respondent raised a preliminary objection, arguing that the Board lacked jurisdiction and that the matter should be determined by an interest board of arbitration constituted under the HLDAA.

The Board dismissed the objection, finding that the Legislature intended for the Board to hear and determine unfair labour practice complaints, including allegations of wrongfully altered working conditions, in the hospital sector.

The proceeding was ordered to continue.

The respondent employer requested reconsideration of a Board decision certifying the applicant union, arguing it did not receive timely notice of the application and thus failed to post notices to employees.

The Board found that the employer had in fact received the notice in a timely manner but failed to open its mail or post the notices promptly.

The Board held that the employer could not rely on its own failure to post notices or file a timely reply to support its request for reconsideration, nor could it invoke the rights of employees who had not themselves complained of insufficient notice.

The request for reconsideration was dismissed.

The applicant employer suspended two full-time employees and requested the respondent union to refer replacement employees pursuant to the collective agreement.

The union refused, asserting the employer had no right to suspend the employees.

The employer applied to the Board under section 92 of the Labour Relations Act, alleging the union's refusal constituted an unlawful strike or a threat of an unlawful strike.

The Board dismissed the application, finding no actual work stoppage or threat of one, as the suspended employees continued to work and the core dispute was a matter of collective agreement interpretation appropriate for arbitration.

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

The employer conceded that collective bargaining had been unsuccessful and that it had adopted an uncompromising position regarding benefits.

The Board found that the employer lacked reasonable justification for its uncompromising stance, as its offer was not a 'cadillac' agreement and its fears of setting a precedent for full-time units were unfounded.

The Board directed the settlement of the first collective agreement by arbitration.

The applicant union applied for a determination of whether certain individuals were employees under the Labour Relations Act.

During the inquiry by a Labour Relations Officer, the respondent employer sought to introduce evidence of bargaining history and historical context regarding the disputed positions.

The Officer ruled the evidence inadmissible.

The respondent challenged the ruling before the Board.

The Board directed the Officer to permit the evidence, finding it arguably relevant to the determination and noting that the potential for delay was not a sufficient basis to exclude relevant evidence.

The union applied for certification of a bargaining unit of the respondent's employees.

The parties disputed whether four temporary agency workers were employees of the respondent for the purposes of the Labour Relations Act.

Applying the criteria from K Mart Canada Limited, the Board found that the respondent exercised overriding control over the workers, including directing their duties, bearing the ultimate burden of their remuneration, and controlling discipline and discharge.

The Board concluded the four persons were employees of the respondent and included them in the bargaining unit for the purposes of the count.

The Board also directed a hearing to determine the voluntariness of a petition filed by employee objectors.

The union filed an unfair labour practice complaint alleging the employer bargained in bad faith by tabling a new proposal regarding vacation pay after conciliation and the issuance of a 'no board' report.

The employer introduced the proposal immediately after receiving an arbitration award that interpreted the existing vacation pay language contrary to its past practice.

The Ontario Labour Relations Board dismissed the complaint, finding that while the employer's actions might cause uncertainty, they did not constitute an attempt to thwart the collective bargaining process or avoid a collective agreement.

The applicant, a leadhand, applied to terminate the union's bargaining rights and circulated a petition in support.

The Board inquired into the voluntariness of the petition.

The Board found that the applicant's position as a leadhand with power to effectively recommend discipline, combined with his family relationship to the plant manager, would cause reasonable employees to perceive him as closely aligned with management.

Consequently, the Board was not satisfied that the petition represented a voluntary expression of employee wishes.

The application was dismissed.

The complainant alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to assist him in criminal proceedings and by its handling of his discharge grievance, including agreeing to admit a criminal trial transcript at arbitration.

The employer and union brought preliminary motions to dismiss the complaint for failing to disclose a prima facie case.

The Board dismissed the complaint against the employer, as section 68 applies only to trade unions.

The Board also dismissed the allegations regarding the criminal proceedings, finding the duty of fair representation does not extend beyond the scope of the union's statutory authority as exclusive bargaining agent.

However, the Board declined to dismiss the allegations concerning the union's handling of the grievance prior to arbitration and its agreement to admit the transcript, allowing those matters to proceed.

The applicant union requested the appointment of a Labour Relations Officer under section 106(2) of the Labour Relations Act to examine the employee status of thirteen individuals reclassified from 'Directors' to 'Consultants' following a workplace reorganization.

The respondent employer argued the union failed to provide sufficient particulars.

The Board found the union provided sufficient information to define the issue and authorized a Labour Relations Officer to inquire into the duties and responsibilities of the disputed individuals.