Employment and Labour Law

The applicant union applied for certification of a bargaining unit of stage employees at the Grand Theatre Centre of Sudbury.

The only issue in dispute was whether the stage hands were employees or independent contractors.

Applying the eleven-factor test from Algonquin Tavern, the Board found that the stage hands did not exhibit entrepreneurial activity, were paid standard rates, and worked under the ultimate control of the theatre's principal.

The Board concluded they were employees, not independent contractors, and directed that a certificate issue to the applicant.

The applicant union applied for a determination of whether a Records Management Co-ordinator was an 'employee' under the Labour Relations Act.

The respondent employer argued the position should be excluded because the incumbent had access to confidential labour relations documents.

The Board found that while the employee had access to such documents, she was not required to read or understand their contents to perform her filing duties, and such documents comprised a very small percentage of her work.

The Board concluded she was not employed in a confidential capacity in matters relating to labour relations and was therefore an employee within the meaning of the Act.

The union filed multiple applications for certification for different bargaining units of the employer.

The employer argued that the union was abusing the process to impose a statutory freeze on terms and conditions of employment, and requested that the Board impose a bar on further applications or order a representation vote.

The Board found no evidence of duplicitous conduct by the union, noting that the appropriate bargaining unit was genuinely in dispute.

The Board declined to impose a bar or order a vote, granted leave to withdraw the earlier applications, and issued a certificate to the union for the agreed-upon bargaining unit.

The Minister referred a question to the Ontario Labour Relations Board under section 3(2) of the Hospital Labour Disputes Arbitration Act, asking whether the employer is a 'hospital' within the meaning of the Act.

The employer operates a residential facility for aged and infirm individuals, providing accommodation and care services.

The Board found that the facility provides observation, care, and treatment to residents, the majority of whom are elderly and require assistance.

The Board concluded that the employer is a 'hospital' under the Act, as the residents are dependent on the care provided and would be at risk in the event of a strike or lock-out.

The applicant filed an application to terminate the union's bargaining rights.

The union argued the application was untimely under section 62(3) of the Labour Relations Act because a lawful strike had commenced.

The employer intervened, arguing no strike had occurred because the picketing taxi drivers did not disrupt the employer's dispatch operations or withhold rental fees.

The Board held that while there was no actual disruption to the employer's business, the union's concerted picketing activity was designed to restrict or limit output.

Therefore, a strike had occurred, rendering the decertification application untimely.

The application was dismissed.

The National Basketball Referees Association applied for a declaration that the National Basketball Association engaged in an unlawful lock-out in Ontario.

The NBA argued that Ontario labour legislation did not apply because the employment relationship was based in the United States and games in Ontario were infrequent.

The Board found that an employment relationship existed in Ontario, the NBRA was a trade union under the Act, and the lock-out was unlawful because the mandatory conciliation process had not been completed.

The Board ordered the NBA to assign NBRA members to games played in Ontario.

The applicant union alleged that the responding municipality violated the duty to bargain in good faith under section 15 of the Labour Relations Act by withdrawing a wage offer and refusing to negotiate retroactive wage increases.

The employer argued that its actions were justified by the financial impact of the Expenditure Reduction Program and the Social Contract Act.

The Board dismissed the application, finding that the employer recognized the union, was prepared to enter into a collective agreement, and was entitled to withdraw its wage proposal due to changed financial circumstances.

The applicant union sought to certify a bargaining unit of chicken catchers employed by the responding party.

The responding party argued that the employees were agricultural workers and therefore excluded from the Labour Relations Act.

The Board found that catching chickens in the barns where they are raised is a harvesting function integral to the agricultural operation, distinct from the industrial processing of the chickens.

Consequently, the employees were deemed agricultural workers, and the certification application was dismissed.

The union filed an unfair labour practice complaint alleging that the employer violated the Labour Relations Act by denying a leave of absence request from a key inside union organizer, which led to her resignation.

The employer failed to call the district manager who made the decision to deny the leave.

Applying the reverse onus provision, the Board concluded that the employer failed to prove its decision was free from anti-union animus.

The Board directed the employer to reinstate the grievor to her former position.

Following the merger of two hospitals to form the North Bay General Hospital, the applicant union and intervenor union agreed that a sale of a business and intermingling of employees had occurred under section 64 of the Labour Relations Act.

The parties agreed to a representation vote but disputed the appropriate bargaining unit configuration.

The applicant sought a single all-employee unit, while the intervenor sought two separate units for service and clerical workers.

The Ontario Labour Relations Board determined that a single, broader-based all-employee unit was appropriate, consistent with its jurisprudence favouring comprehensive units to avoid fragmentation and promote stability.

A representation vote was ordered for the single unit.

The applicant union applied for certification of a new bargaining unit of continuing education instructors and sought to combine it with an existing unit that had not yet reached a first collective agreement.

The employer opposed the combination, arguing it would cause serious labour relations problems and instability.

The Board granted the combination, finding that the alternative of two small, fragmented units would be more problematic than integrating the new group into the ongoing first contract arbitration.

A dissenting board member would have refused the combination.

The union filed an unfair labour practice complaint alleging the employer violated the Labour Relations Act through threats and discriminatory layoffs during a certification drive.

The Board found that a foreman's comments to employees regarding unionization constituted unlawful interference, intimidation, and threats.

Furthermore, the Board concluded that the employer failed to discharge its reverse onus to prove that the subsequent layoff of three employees was free of anti-union animus, as the asserted lack of work did not adequately explain the timing or extent of the layoffs.

The Board ordered the immediate reinstatement of the employees with compensation for lost wages.

The union applied for certification of a bargaining unit of employees at a greenhouse.

The employer argued the application should be deferred until the fall harvest season when the workforce would be significantly larger due to the seasonal nature of the business.

Intervening employees alleged that the union's membership evidence was collected using intimidation and misrepresentation regarding job security and seniority.

The Board declined to defer the application, finding the workforce at the time of application was sufficiently representative of the core regular employees.

The Board also dismissed the allegations of improper conduct, finding no material misrepresentation or coercion that would cast doubt on the voluntariness of the membership evidence.

A certificate was issued to the applicant.

The applicant union, IATSE Local 173, applied under section 63 of the Labour Relations Act for a declaration that it was the successor to several other IATSE locals with respect to their jurisdiction over projectionists.

The reorganization was approved by the parent union and the membership of the affected locals.

Famous Players and Cineplex Odeon opposed the application, arguing that the union constitution did not permit the transfer of jurisdiction in this manner.

The Board found that the reorganization was consistent with the union's constitution and past practice, and that the term 'jurisdiction' in section 63 encompassed the transfer of geographic and craft jurisdiction between local unions.

The Board granted the declaration, confirming Local 173 as the successor bargaining agent.

The Minister referred a question to the Board regarding whether Maison Mere des Soeurs de la Charite d'Ottawa is a 'hospital' under the Hospital Labour Disputes Arbitration Act.

The applicant union argued that the institution's infirmary, which cares for aging nuns, qualifies it as a hospital.

The responding party argued it is the headquarters of a religious order and a private residence for its members, not an institution operated for the care of the aged.

The Board advised that the institution is not a hospital or home for the aged within the meaning of the Act, as its primary purpose is to house members of the religious order and serve as a base for their work, rather than to operate as a care facility.

The applicant union brought an application under section 73.1 of the Labour Relations Act regarding a strike of counter attendants and car jockeys.

The responding party employer challenged whether the strike vote met the statutory requirements for ample opportunity to vote and secrecy of the ballot.

The Board found that the notice provided was sufficient and that the voting arrangements, while not perfect, provided a secret ballot process that employees could opt out of, satisfying the requirements of the Act.

As the strike had ended, the matter was terminated.

The applicant unions filed grievances alleging that the responding employers violated the provincial collective agreement by failing to remit the proper contribution amounts to multi-employer benefit plans.

Following the enactment of an 8% retail sales tax on group insurance premiums, the employers took the position that their negotiated contribution amounts were tax-inclusive, effectively reducing the net amount remitted to the funds.

The employers argued the Board lacked jurisdiction to enforce a tax statute.

The Board found it had jurisdiction to interpret the collective agreement and held that the negotiated contribution amounts were exclusive of the retail sales tax.

The employers were required to pay the tax in addition to the full contribution amounts specified in the collective agreement.

The Minister of Labour referred a question to the Ontario Labour Relations Board to determine whether North Yorkers for Disabled Persons Inc., a group home providing 24-hour attendant care to physically disabled adults, is a 'hospital' under the Hospital Labour Disputes Arbitration Act.

The employer argued that the care provided was not medical and that the residents were capable of directing their own care.

The Board concluded that the extensive personal care provided to the residents, who suffer from physical illnesses or injuries, constitutes 'observation, care or treatment' within the meaning of the Act.

The Board advised the Minister that the facility is a hospital under the Act, with one member dissenting.

The applicant union filed applications for certification and unfair labour practice complaints against two temporary personnel agencies, Dare Personnel Inc. and Personnel Force Inc. The union sought bargaining rights for electricians supplied by the agencies to the federal Department of Public Works.

The Board determined as a preliminary issue whether the agencies were the employers of the electricians.

Applying the York Condominium factors, the Board found that fundamental control over the electricians' day-to-day work, including direction, supervision, and the authority to remove them from the site, rested with Public Works, not the agencies.

Consequently, the Board concluded that the personnel agencies were not the employers and dismissed the certification applications.

The applicant filed a complaint under section 174 of the Environmental Protection Act, alleging that the respondent employer failed to recall him from layoff as a reprisal for providing a statement to the Ministry of the Environment.

The employer argued that the applicant had been permanently laid off due to performance issues before they became aware of his involvement with the Ministry.

The Board found that the applicant's employment relationship had been severed at the time of his layoff, meaning he was not an 'employee' when the alleged reprisal occurred.

Although the Board found the employer's subsequent remarks to the applicant inappropriate and indicative of a reprisal, the application was dismissed because the statutory protection only applies to current employees.