Employment and Labour Law

The applicant filed a complaint under the Occupational Health and Safety Act alleging that she was sexually harassed at work, which caused her to feel unsafe, and that her subsequent termination was a reprisal for reporting the harassment.

The responding party brought a preliminary motion to dismiss the complaint for want of a prima facie case, arguing that sexual harassment is not covered by the Act.

The majority of the Board dismissed the preliminary motion, finding that the matter ought not to be dismissed without a hearing.

A dissenting member argued that the Board lacks jurisdiction because sexual harassment falls under the Human Rights Code, not the Occupational Health and Safety Act.

The applicant union applied to combine two separate craft bargaining units (press/photomechanical and mail room) at the responding party's newspaper printing plant.

The employer opposed the combination, arguing that the Labour Relations Act does not permit the combination of craft units and that it would cause serious labour relations problems due to differing interests.

The Board held that section 6(3) of the Act does not bar the combination of craft units under section 7.

Finding that combination would facilitate viable and stable collective bargaining and reduce fragmentation without causing serious labour relations problems, the Board granted the application and ordered the units combined.

A dissenting member would have dismissed the application.

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

The intervenor trade union and the responding employer asserted that their existing collective agreement constituted a complete bar to the application.

The applicant challenged the validity of the agreement, alleging that the intervenor was not entitled to represent the employees at the time it was entered into and that it had received improper employer support.

The Board found that the agreement was a valid pre-hire arrangement common in the construction industry, that the employees had freely voted to accept it, and that there was no improper employer support.

The application for certification was dismissed.

The applicant trade union sought to withdraw its certification application after the Board identified irregularities in the membership evidence.

The responding party employer objected, arguing that a Vice-Chair sitting alone lacked jurisdiction to hear the matter and that the Board should investigate the alleged fraudulent membership evidence.

The Board held that the Vice-Chair had jurisdiction to sit alone pursuant to section 104(12) of the Labour Relations Act.

The Board further declined to litigate the membership evidence issues, noting that the union had withdrawn the application, and dismissed the certification application.

The applicant, who operated an insulation business with his wife, applied to terminate the union's bargaining rights.

The union brought a non-suit motion, arguing the applicant was a principal of the company and that the application was not voluntary.

The Board granted the non-suit motion and dismissed the application, finding that even if the applicant were considered an employee, the decision to bring the application was made jointly with his wife, who managed the business.

Therefore, the application did not represent a voluntary expression of employee wishes free from management influence.

The applicant union alleged that the responding employer unlawfully used replacement workers during a strike, contrary to section 73.1 of the Labour Relations Act.

The employer raised a preliminary objection regarding a technical error in the corporate name on the Minister's 'No Board' report, which the Board dismissed, finding the employer had received and acted upon the notice.

On the main issue, the union had conducted a single strike vote among all its members who worked in the sector, rather than limiting the vote to the employees of the responding employer, with whom it was bargaining individually.

The Board held that under section 73.1(2), when an employer bargains individually outside the ICI sector and without accreditation, only the votes of that specific employer's employees may be counted to determine if the required 60 percent authorization was achieved.

Because the union could not establish that 60 percent of the responding employer's employees authorized the strike, the preconditions of section 73.1 were not met, and the application failed.

In a union certification application, the parties disputed whether lead hands, linemen, and senior deburrers should be excluded from the bargaining unit.

The employer failed to file particulars, so the Board proceeded based on the union's statement of facts.

The Board found that the disputed employees did not exercise managerial functions under section 1(3) of the Labour Relations Act, as their involvement in discipline and scheduling was limited and infrequent.

The Board also rejected the argument that they lacked a community of interest with the rest of the bargaining unit, noting that minor differences in working conditions do not create serious labour relations problems.

A final certificate was issued to the union.

The applicant union alleged that the respondent non-profit community theatre purchased a part of the business of the predecessor cinema operator when it acquired a theatre building, and thus was a successor employer under section 64 of the Labour Relations Act.

The respondent purchased the cinema and renovated it for live theatre performances.

The Board found that the respondent did not acquire a distinct part of the predecessor's configuration of assets, nor was there a continuation of the work performed by the employees.

The application was dismissed as no sale of a business occurred.

The applicant union brought a grievance referral under section 126 of the Labour Relations Act, arguing that the fabrication of ductwork by DuraSystems in its off-site shop for installation on ICI projects was covered by the ICI agreement.

The respondents argued that off-site shop work did not fall within the definition of the construction industry.

The Board held that under section 119 of the Act, employees engaged entirely in off-site work are construction employees if they are commonly associated in bargaining with on-site employees.

Finding a long-standing practice in the sheet metal industry of associating shop fabricators with on-site installers in bargaining, the Board concluded that DuraSystems' shop employees were construction employees and their fabrication of ductwork for ICI sites was covered by the ICI agreement.

The applicant filed a complaint against his union under the Labour Relations Act, alleging various contraventions related to his termination.

He had previously filed a reprisal complaint against his employer under the Occupational Health and Safety Act, which the Board dismissed after finding his termination for absenteeism was lawful and reasonable.

The Board dismissed the current complaint without a hearing, finding that the applicant was attempting to re-litigate the propriety of his discharge and that the allegations did not make out an arguable case against the union.

The applicants, the Painters union, filed a complaint concerning a work assignment for the removal of lead-contaminated plaster.

The Ontario Labour Relations Board held a consultation and determined that the work in dispute should have been assigned to the Labourers union.

The Board found that the Labourers had the relevant practice in the Board area and significantly greater experience with plaster removal, and declined to sanction a different procedure merely because the plaster contained lead.

The applicant union sought interim relief under section 92.1 of the Labour Relations Act to prohibit the employer from relocating planing mill operations to a sawmill facility, or alternatively, an order assigning the planing work to its members pending the disposition of related unfair labour practice and work assignment complaints.

The employer planned to consolidate operations, taking the position that the relocated work would fall under the respondent union's collective agreement.

The Board found an arguable case for the work assignment but concluded the balance of harm did not favour granting interim relief, as the applicant did not challenge the employer's right to transfer operations and a temporary reassignment of work would cause equal prejudice to the respondent union.

The application for interim relief was dismissed.

The applicant filed a complaint alleging that the responding trade union breached its duty of fair representation under section 69 of the Labour Relations Act by failing to take his discharge grievance to arbitration.

The applicant had been terminated for alleged poor work performance and sleeping on the job.

The union relied on a legal opinion to decide against arbitration, but the Board found that the union representative failed to provide counsel with all relevant information and failed to properly consider the possibility of obtaining a lesser substituted penalty.

The Board concluded that the union's decision was arbitrary and in bad faith, thereby breaching section 69.

The issue of remedy was remitted to the parties.

The United Steelworkers of America applied for certification.

A group of objecting employees filed petitions opposing the union.

The employer argued the application was an abuse of process because it was filed immediately after a previous application was withdrawn.

The Board dismissed the employer's preliminary motion, finding no substantial prejudice.

The Board then assessed the voluntariness of the employee petitions.

Due to inconsistencies in testimony, the open nature of the workplace discussions, and the manner of circulation, the Board found the objectors failed to establish the petitions were voluntary.

As the union had support from more than 55% of the bargaining unit, the Board granted certification.

During examinations before a Board Officer in a construction industry certification application, counsel for the responding employer refused to commence cross-examination, claiming surprise at the evidence-in-chief and requesting an adjournment.

The Board Officer directed counsel to proceed, but counsel refused and requested a Board ruling.

The Board upheld the Officer's direction, noting that parties are not required to disclose evidence in advance and that failing to follow an Officer's procedural direction is done at a party's peril.

However, because no meaningful hearing time was lost, the Board permitted the responding party a second opportunity to cross-examine the witness at the next scheduled date.

The employer, Algoma University College, filed a jurisdictional dispute complaint regarding the assignment of library reference desk duties and library tours.

The work had been assigned to members of both the Staff Association and the Faculty Association.

The Board found that the work was normally performed by members of both associations and that there was a clear overlap in jurisdiction.

Considering past practice, area practice, and factors of economy and efficiency, the Board confirmed the employer's assignment of the disputed work to members of both associations.

The applicant union applied for certification.

The responding employer alleged that a former supervisor, acting on behalf of the union, used intimidation and coercion to convince employees to join, and requested a representation vote under section 8 of the Labour Relations Act.

The Board found no evidence that the supervisor was acting on behalf of the union or that her statements about potential job losses and shift changes constituted threats or undue influence.

The Board declined to order a representation vote and granted the certification.

The applicant union applied for certification to displace the incumbent union representing police officers at the University of Toronto.

The incumbent union and the employer argued that the application was untimely because their collective agreement had been extended pursuant to the Social Contract Act.

The Board held that the Social Contract Act does not explicitly or implicitly protect incumbent bargaining agents from displacement applications during the open periods defined in the Labour Relations Act.

The Board concluded that the application was timely and directed that the ballots cast in the pre-hearing representation vote be counted.

The applicant union applied for certification to represent a bargaining unit of the employer's employees.

The sole issue in dispute was whether a specific employee should be included on the list of employees for the purpose of determining the union's membership support.

The employee had been laid off prior to the application date but continued to attend an employer-paid training course related to his job duties.

The Board found that the employee was 'at work' while attending the course and was therefore properly included on the list of employees.

The Board ordered a representation vote.

The union alleged that the employer violated the replacement worker provisions of the Labour Relations Act by using independent brokers to deliver aggregate during a strike/lockout.

The bargaining unit consisted of dependent contractors who delivered stone using tandem, single axle, and tractor trailer vehicles.

The Board found that the employer did not violate the Act by continuing to use independent brokers for tractor trailer deliveries that were consistent with past practice or driven by customer demand.

However, the Board found a violation of section 73.1 with respect to the work formerly performed by the sole bargaining unit member who drove a tractor trailer, as independent contractors were performing his work during the dispute.

The Board directed the parties to make submissions on the appropriate remedy.