Employment and Labour Law

The applicant union applied for certification to represent employees of Gallup Canada, Inc. in Metropolitan Toronto.

The responding party failed to file a timely reply or raise the exclusion of analysts from the bargaining unit by the terminal date.

The Board declined to permit the responding party to belatedly raise the issue, finding it would prejudice the union.

The Board determined the appropriate bargaining unit and found that more than 55 per cent of the employees in the unit had applied to become members of the union.

A certificate was issued to the applicant.

The Board issued reasons for its earlier decision to revoke the early termination of a collective agreement between Ledcor and CLAC.

Local 183, which had filed a certification application during what would have been the open period, sought reconsideration of the early termination.

The Board found that Local 183 had standing to bring the reconsideration application because its interests were directly affected.

On the merits, the Board held that the employer's posting of the notice of the early termination application at its office and yard, rather than at the actual job sites where employees worked, was inadequate.

Consequently, the Board revoked its decision granting early termination.

The parties subsequently settled the remaining matters, including the certification application, which was dismissed after a representation vote.

Following a finding that the union violated its duty of fair representation under section 69 of the Labour Relations Act by failing to intervene prior to the applicant's discharge, the Board held a hearing to determine the appropriate remedy.

The Board ordered the extraordinary remedy of reinstating the applicant to his former position with the intervenor employer, finding that the discharge would likely have been avoided but for the union's breach.

The Board also ordered the union to compensate the applicant for nine months of lost wages, reducing the compensation period due to the applicant's failure to fully mitigate his damages and his own contributory conduct.

The applicant union filed an unfair labour practice complaint alleging that the employer and its director laid off several employees because of their union activity during an organizing campaign.

The Board found the director's testimony regarding the reasons for the layoffs to be contradictory and not credible.

The Board concluded that the layoffs were motivated by anti-union animus, violating sections 65, 67, and 71 of the Labour Relations Act.

The Board also found the director personally liable as he was the controlling mind of the company and acted on its behalf.

The respondents were ordered jointly and severally to pay $24,797.00 in damages for the lost wages of the laid-off employees.

The applicant union filed applications for certification for newspaper delivery drivers engaged by the responding party.

The central issue was whether the drivers were dependent contractors (and thus employees under the Labour Relations Act) or independent contractors.

The Board applied the eleven-factor test from Algonquin Tavern, considering the context of the newspaper industry.

The Board found that the drivers had significant independence, including the ability to use substitutes, control their own expenses, and work other jobs.

The Board concluded that the drivers were independent contractors and dismissed the applications for certification.

The applicant, a journeyman steamfitter, filed a complaint alleging that his union, Local 463, breached its duty of fair referral under section 70 of the Labour Relations Act.

The union bypassed the applicant on the welders' out-of-work list and referred two members below him to a job at a Canadian Armed Forces base without offering him the opportunity to test for the position.

The union argued it needed to send welders proficient in the 'downhand' technique to ensure the union contractor succeeded on the job.

The Board found that the union's representatives acted arbitrarily and discriminatorily by ignoring the hiring hall's working rules and relying on subjective opinions rather than offering the applicant the required test.

The Board declared a breach of section 70 and ordered the union to compensate the applicant for lost wages and benefits.

The union applied for certification to represent security guards employed by the responding party.

The parties disagreed on the description of the bargaining unit.

The union proposed a municipality-wide unit, while the employer argued for a site-specific unit limited to the single location where it currently operated in the municipality.

The Board followed its established practice for single-location operations and determined that a municipality-wide bargaining unit was appropriate.

A certificate was issued to the applicant.

The union applied to combine a newly certified bargaining unit of three service technicians in northern Ontario with an existing bargaining unit of service technicians based in Richmond Hill.

The employer opposed the combination, arguing a lack of community of interest and expressing concern that it would lose the opportunity to negotiate terms for the northern employees, who faced different economic realities.

The Board found that the employees shared a community of interest as they performed identical work and reported to the same manager.

The Board ordered the combination of the bargaining units to facilitate viable and stable collective bargaining and reduce fragmentation.

However, the Board declined to order that the existing collective agreement automatically apply to the northern employees, instead referring the matter back to the parties to negotiate the terms for the newly added employees.

The applicant trade union applied for certification and the parties agreed on a bargaining unit description during the Board's waiver process.

The union subsequently requested to amend the bargaining unit to include part-time employees, arguing that the Labour Relations Act required a combined unit.

The Board dismissed the request, finding that the statutory language was permissive, not mandatory, and that the union had provided no compelling reasons to resile from the agreed-upon description.

The applicants sought a declaration under sections 64 and 1(4) of the Labour Relations Act that the responding parties were a single employer or that a sale of business had occurred.

The responding parties failed to file a response or participate in the proceedings.

The Board deemed the uncontradicted facts in the application to be accepted and declared the responding parties to be one employer for the purposes of the Act, bound by the collective agreement.

The applicant employer association referred a grievance to the Ontario Labour Relations Board under section 126 of the Labour Relations Act, seeking a declaration that the Trustees of the Canadian Elevator Industry Pension Plan are not required to accept contributions from employers who are not bound by a valid collective agreement.

The responding trade union objected to the Board's jurisdiction, arguing the dispute originated in Nova Scotia.

The Board found it had jurisdiction because the Trustees had exercised their contractual power to refer the policy grievance to arbitration in Ontario.

On the merits, the union conceded the employer's interpretation, and the Board declared that the Trustees are not required to accept contributions from non-member employers.

The applicant union referred a construction industry grievance and applied for declarations that the responding parties constituted one employer and that a sale of business had occurred.

The principal of the first responding party's son incorporated a new company to perform demolition work, utilizing the same business name to benefit from established goodwill, while avoiding the union.

The Board found that a sale of business had occurred through the transfer of goodwill and that the two entities constituted one employer under the Labour Relations Act.

The Board declared both entities bound by the collective agreement and jointly and severally liable for breaches related to a demolition project where non-union workers were employed.

The United Steelworkers of America applied for certification as the bargaining agent for employees of Hemlo Gold Mines Inc. A group of employees intervened, seeking to file petitions opposing the union after the application filing date.

The intervenors argued that the Board's rules regarding the certification application date and notice to employees violated the rules of natural justice and the Charter of Rights and Freedoms.

The Board dismissed the intervenors' motions, finding that the Labour Relations Act clearly established the application filing date as the certification application date, and that the statutory provisions did not violate the Charter.

The Board also dismissed a motion alleging a reasonable apprehension of bias.

Finding that over 55% of the employees in the bargaining unit had applied to become members of the union on or before the certification application date, the Board certified the union without a representation vote.

The applicant union applied for certification to represent a bargaining unit of production employees.

The employer and a group of objecting employees challenged the reliability of the union's membership evidence, alleging misrepresentation and language barriers.

The Board dismissed these objections as insufficiently particularized or not raising matters that would invalidate the cards.

The parties disputed the inclusion of several positions in the bargaining unit.

The Board ruled that production facilitators, supervisor trainees, and engineers were included, while blenders and quality control staff were excluded as technical employees.

The Board also held that employees of a newly created division (Shrader/Malcolm) shared a sufficient community of interest with the production employees and were included in the unit.

An interim certificate was issued, with a Board Officer appointed to inquire into the remaining disputed position of office custodian.

One Board Member dissented regarding the inclusion of the Shrader/Malcolm employees.

The Ontario Sheet Metal Workers filed a jurisdictional dispute complaint in response to a grievance by the Carpenters claiming work related to the installation of sheet metal siding onto wood at a Sarnia job site.

The Ontario Labour Relations Board confirmed the employer's assignment of the work to the Sheet Metal Workers, finding that the nature of the material (sheet metal) was more significant than the base (wood), and that employer practice and efficiency favoured the Sheet Metal Workers.

The Board also made several procedural rulings, including excluding area practice evidence from the Carpenters due to a failure to provide adequate particulars, and refusing to terminate the proceedings after the Carpenters withdrew their underlying grievance.

Following a prior decision finding a sale of part of a business from St. Mary's Hospital to Kitchener-Waterloo Hospital and an unfair labour practice, the Board determined the effective date for terminating the applicant's bargaining rights.

The Board held it has jurisdiction under section 64(6) of the Labour Relations Act to make its declarations retroactive to the date of the sale to prevent labour relations instability.

The Board also ordered a remedy for the section 67 breach, directing the respondent to offer the 74 newly-created positions to the appropriate nurses from a combined pool, with potential damages subject to mitigation.

The union applied for an interim order under section 92.1 of the Labour Relations Act, alleging the employer committed unfair labour practices during an organizing drive by distributing and posting a letter that intimidated employees and counselled them to resign their union membership.

The Board granted the interim relief, ordering the employer to remove the letter from the workplace and refrain from communicating with employees to counsel them to resign their union membership, finding that the union made out an arguable case and that the balance of harm favoured preserving the union's right to a meaningful remedy pending the hearing of the main complaint.

The applicant, Local 2, sought interim relief under section 92.1 of the Labour Relations Act to stay the operation of a sub-contracting clause in a collective agreement between the Metropolitan Toronto Apartment Builders Association (MTABA) and Labourers' Local 183.

Local 2 alleged that the clause, which required all bricklaying work to be performed by companies bound to Local 183 or Local 1, interfered with its bargaining rights in the residential sector.

The Board dismissed the application, finding that Local 2 failed to provide sufficient particulars regarding the source of its bargaining rights for the affected contractors.

Furthermore, the Board concluded that the potential harm to Local 183 and MTABA from staying a freely negotiated collective agreement provision outweighed the speculative harm alleged by Local 2, particularly given Local 2's delay in bringing the application.

The applicant union sought an interim order under section 92.1 of the Labour Relations Act to reinstate an employee who was allegedly discharged for his involvement in a union organizing drive.

The responding employer claimed the employee was discharged for covering up a theft.

In its first decision interpreting the new interim relief power, the Board established a test requiring an arguable case on the merits and a balancing of the harm to both parties.

Finding that the discharge of a union organizer has a severe chilling effect on an organizing campaign that cannot easily be remedied later, the Board concluded the balance of harm favoured the applicant.

The Board ordered the employee's interim reinstatement pending the final disposition of the unfair labour practice complaint, but denied the request for interim compensation.

During a hearing, the applicant union sought to cross-examine the responding party's president regarding alleged statements made to a grievor.

The responding party objected because the statements were not particularized in the application materials.

The Board sustained the objection, ruling that under Rule 12(d) of the Board's Rules of Procedure, the applicant was required to provide a detailed statement of all material facts relied upon, and failed to do so.