Employment and Labour Law

The union applied for a declaration that STM, All-Way, and the TTC be treated as one employer under s. 1(4) of the Labour Relations Act, or alternatively that a sale of a business occurred under s. 63.

The Board found that STM and the TTC were not under common control or direction, as the TTC had passed control of the subcontracted station wagon service to STM.

However, the Board declared that All-Way and STM, which were wholly-owned subsidiaries of the same parent corporation, carried on related activities under common control and direction.

The Board exercised its discretion to make a one-employer declaration to protect the union's bargaining rights, which would otherwise be undermined by the transfer of the contracting work from All-Way to STM.

The application regarding the TTC was dismissed.

The union grieved the discharge of an employee who was terminated after failing to report for work and failing to notify the employer of his absence.

The employer relied on this failure as a culminating incident, pointing to the employee's prior disciplinary record, which included warnings and suspensions for attendance issues, insubordination, and driving a company vehicle with a suspended license.

The Board found that the failure to notify warranted some discipline and constituted a culminating incident.

However, considering the employee's length of service and the fact that he was not previously on the verge of termination, the Board concluded that discharge was excessive.

The Board substituted a 10-day suspension and ordered the employee reinstated with compensation.

The complainant applied for reconsideration of a Board decision that dismissed his unfair labour practice complaint for lack of prosecution after he failed to attend the scheduled hearing.

The complainant argued that he missed the hearing because he mistakenly believed it was scheduled for the following Tuesday.

The Board dismissed the application for reconsideration, finding that the complainant had received clear notice of the hearing date and that his failure to attend was due to his own negligence in not reading the notice, which is not a sufficient ground to reopen the matter.

The union filed a grievance alleging the employer violated the collective agreement by denying reporting pay to afternoon shift employees who were sent home due to severe weather.

The employer had determined that gale-force winds and flying debris created an emergency endangering employee safety, necessitating a shutdown of the shift.

The Ontario Labour Relations Board dismissed the grievance, finding that the collective agreement granted the employer the subjective discretion to determine when an emergency shutdown was necessary to protect life and safety.

The Board concluded the employer's decision was not arbitrary, discriminatory, or in bad faith, and was in fact reasonable under the circumstances.

The union referred a grievance and applied for a related employer declaration under s. 1(4) of the Labour Relations Act against Fox and Spencer.

Fox, a unionized employer, subcontracted ironwork to Spencer, a non-unionized related company, which then employed union members but calculated commuting allowances from a different centre to save costs.

The Board found Fox and Spencer were related employers and declared them a single employer effective from the date the grievance was filed.

The Board held that the employers breached the collective agreement regarding commuting allowances and were liable for damages, rejecting the employers' estoppel defence.

The Carpenters' Union filed an unfair labour practice complaint alleging that the employer and the Labourers' Union conspired to undermine its bargaining rights by assigning formwork to labourers instead of carpenters.

The Labourers' Union also applied for certification to displace the Carpenters' bargaining rights.

The Board dismissed the unfair labour practice complaint, finding that the matter was essentially a jurisdictional dispute over work assignment rather than a derogation of bargaining rights, which should be resolved under the jurisdictional dispute provisions of the Act.

Regarding the certification application, the Board found that at least three persons were employed as carpenters on the application date, entitling the Labourers' Union to a pre-hearing vote.

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

The union argued that the employer failed to make reasonable or expeditious efforts to conclude an agreement and adopted uncompromising bargaining positions without reasonable justification.

The Ontario Labour Relations Board found that the employer's bargaining approach, which included a massive volume of proposals, concessionary demands, and a confusing format, amounted to 'busy work' bargaining that hindered progress.

Furthermore, the employer's final offer was uncompromising and its financial justification was incomplete and unpersuasive.

The Board directed the settlement of the first contract by arbitration.

A partial dissent was filed regarding a preliminary ruling on the late filing of the employer's reply.

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

The respondent disputed the employment status of the individuals on the lists and requested the Board defer the vote until a hearing could be held.

The Board declined to depart from its normal practice of directing a vote and deferring contentious issues until after the vote.

A pre-hearing representation vote was directed, with the ballot box to be sealed and disputed ballots segregated pending a hearing on the outstanding issues.

The applicant union applied for certification to represent employees of the respondent, an agency assisting individuals with developmental disabilities.

The parties agreed on the bargaining unit description except for the inclusion of four Home Support Workers.

The employer argued these workers were dependent contractors or lacked a community of interest with other staff.

The Board found the Home Support Workers were employees under the Labour Relations Act and shared a sufficient community of interest with the other support workers.

The Board included them in the bargaining unit and directed that a certificate issue to the applicant.

The complainant, a carpenter and health and safety representative, alleged he was laid off in reprisal for his safety activities, contrary to section 24(1) of the Occupational Health and Safety Act.

The Board found that the employer failed to provide a satisfactory explanation for selecting the complainant for layoff, noting his average or better work performance and the friction caused by his safety duties.

Concluding that the layoff was motivated at least in part by his health and safety role, the Board ordered his reinstatement with compensation.

The applicant union sought to displace the intervener union as the bargaining agent for the respondent's employees.

A representation vote was held.

The intervener and respondent requested that the vote be disregarded because the Board provided voting materials only in English and French, despite a large percentage of employees speaking Spanish or Punjabi.

They argued this violated the Human Rights Code and caused widespread confusion.

The Board reaffirmed its long-standing policy of providing documents only in English and French, noting that it is the responsibility of the parties to explain the process to employees who do not understand the official languages.

The request to retake the vote was denied.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging the respondent employer failed to pay a travel allowance required by the collective agreement.

The dispute centered on whether the 'employer's yard' for calculating the travel allowance referred to the local contractor's permanent yard (McFarland yard) or the respondent's temporary yard on the job site.

The Board upheld the grievance, finding that under the 'pick-up' agreement, the respondent was bound to the terms of the local McFarland Agreement, which required calculating the travel allowance from the McFarland yard to equalize competitive positions.

The union applied for certification to represent a group of service technicians employed by the respondent.

Because the employees had no fixed workplace, standard workplace posting of the notice of application was impossible.

The Board directed the employer to provide a list of the employees and their addresses so that notice could be given by other means.

The applicant employee association applied for certification and was required to establish its status as a trade union under the Labour Relations Act.

The Board found that the steps taken to form the association, including adopting a constitution, electing officers, and setting dues, were sufficient to establish it as a trade union.

Although membership cards were signed before the constitution was officially adopted, the Board held that subsequent acts consistent with membership, such as ratifying the constitution at a general meeting, validated the membership evidence.

A certificate was issued to the applicant.

The applicant union applied for certification to represent construction labourers employed by the respondent.

The parties disputed the inclusion of two employees, Lefevre and Grotsch, in the bargaining unit for the purpose of the statutory count.

The Board found that Lefevre did not exercise managerial functions but was not performing bargaining unit work for the majority of his time on the application date, and thus excluded him.

The Board found that Grotsch was performing bargaining unit work for the majority of his time and included him.

Having ascertained the number of employees in the unit and finding the union had the requisite membership support, the Board issued the certificates.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the respondents, Agincourt and KNK, constituted one employer.

The principal of Agincourt, a unionized electrical contractor, ceased operations and shortly thereafter incorporated KNK, a non-union firm carrying on the same business.

The respondents conceded the legal requirements for a related employer declaration were met but argued the union's delay in bringing the application should bar relief.

The Board held that delay alone does not bar a section 1(4) declaration, as the provision is designed to prevent the erosion of bargaining rights through corporate restructuring.

However, given the union's delay, the Board granted the declaration but limited its retrospective effect to commercial activities entered into after the union filed the application.

The applicant union sought to withdraw its certification applications after meetings with a Labour Relations Officer had commenced and after the respondent employer raised 'non-pay' allegations regarding the union's membership evidence.

The employer argued the applications should be dismissed and the non-pay allegations adjudicated.

The Board declined to adjudicate the non-pay allegations in the context of a withdrawn application.

However, interpreting its Practice Note No. 7 in light of recent procedural changes, the Board held that a request to withdraw made after a Labour Relations Officer has met with the parties should result in the dismissal of the applications.

The applications were accordingly dismissed.

The applicant filed an application for certification and requested a pre-hearing representation vote.

The ballot box was sealed pending a determination of whether the applicant was a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

The Board found that the applicant had only completed two of the five steps required to establish trade union status prior to the application date, as it had not admitted members, ratified the constitution, or elected officers.

The application was dismissed.

The union applied for certification.

A group of employees filed petitions (statements of desire) opposing the application.

The Board held hearings to determine the voluntariness of these petitions.

Evidence showed that management held captive audience meetings, questioned an employee about union membership, and that the petitions were circulated during working hours in areas frequented by management.

The Board concluded that the objectors failed to meet the onus of establishing that the petitions were voluntary, as employees would reasonably suspect management involvement.

The Board found the union had the requisite membership support for certification, pending resolution of remaining bargaining unit composition issues.

The applicant union referred a construction industry grievance and applied for a related employer or sale of business declaration against the respondents.

The Board found that the original company and the newly incorporated company were associated or related employers under common control and direction, as the owner created the new company to avoid liabilities while continuing the same concrete forming business.

The Board declared them one employer bound by the collective agreement.

The sale of business application was dismissed due to insufficient evidence.

The Board upheld the grievance, finding the respondents violated the collective agreement by employing non-union members and failing to remit required contributions, and ordered the payment of $12,690.35.